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Harrod v. USAA Insurance Co.

Court of Appeals of Ohio, Second District, Montgomery

July 5, 2019

JOSHUA HARROD, et al. Plaintiffs-Appellees
USAA INSURANCE COMPANY, et al. Defendants-Appellants

          Civil Appeal from Common Pleas Court Trial Court Case No. 2015-CV-2678

          JOHN A. SMALLEY, Attorney for Plaintiffs-Appellees.

          JONATHON L. BECK, CHRISTINE N. FARMER, Attorney for Defendant-Appellant, Jesse Walling.


          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Jesse Walling, appeals following a jury verdict in the Montgomery County Court of Common Pleas in favor of Joshua Harrod in a personal injury case arising out of an automobile accident. Specifically, Walling challenges the trial court's denial of his motion for a directed verdict and the trial court's denial of his motion for a mistrial and new trial. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} This case stems from an automobile accident that occurred on September 13, 2013 in Dayton, Ohio. The accident occurred as a result of Walling's pulling in front of another vehicle while Walling was attempting to turn left onto Harshman Road from a private drive. Walling's vehicle was struck and pushed into another vehicle that was sitting in traffic. The driver of the vehicle sitting in traffic was plaintiff-appellee, Joshua Harrod.

         {¶ 3} Harrod filed a negligence action against Walling for injuries he allegedly sustained in the collision. Harrod also named his own insurer, USAA Insurance Company ("USAA"), as a defendant in the action for purposes of asserting an uninsured/underinsured motorist claim. Although Harrod eventually dismissed his claim against USAA, USAA remained a named defendant on the case caption. However, to prevent any reference to insurance that might prejudice Walling at trial, the parties agreed to refer to the case as "Joshua Harrod v. Jesse Walling" rather than "Joshua Harrod v. USAA Insurance Co."

         {¶ 4} The case proceeded to a jury trial on June 12, 2018. Prior to trial, the trial court granted Walling's motion in limine to exclude Harrod from mentioning, referencing, or introducing the topic of liability insurance coverage. Also prior to trial, the parties stipulated that Walling was negligent in causing the automobile accident at issue. Therefore, due to the parties' stipulation, the only issue left for trial was whether Walling's negligence was the proximate cause of Harrod's injuries, and, if so, the nature and extent of those injuries.

         {¶ 5} At trial, Harrod testified regarding the nature of the accident, the neck and back pain he suffered thereafter, and all the medical treatment he has received for his pain during the four years leading up to trial. Harrod testified that his neck pain subsided two or three months after the accident, but that his back pain continued to bother him. Harrod, who had served in the military for 15 years, indicated that his military career ended as a result of his back pain, which rendered him unable to perform his job duties. Harrod also testified that his back pain prevented him from sitting longer than 30 minutes, bending over to tie his shoes, and enjoying activities such as swimming and running.

         {¶ 6} One of the doctors who examined Harrod, Dr. Jeffrey Scott Rogers, also testified at trial. Dr. Rogers testified that, to a reasonable degree of medical certainty, Harrod's back pain was related to the automobile accident at issue. On cross-examination, Walling questioned Dr. Rogers and Harrod regarding a pre-existing condition discovered in Harrod's lumbar spine. The pre-existing condition was described as a pars defect, which occurs when the vertebrae do not form correctly. Dr. Rogers testified that a pars defect is a congenital condition, meaning it is present since birth. Dr. Rogers also testified that a pars defect is asymptomatic, meaning it does not cause any problems unless exacerbated by some kind of trauma. Harrod testified that he had never experienced any pain or trauma to his back prior to the accident. Walling elicited no evidence refuting that claim.

         {¶ 7} In addition, Walling cross-examined Dr. Rogers on certain MRI reports that were generated six months after the accident. The MRI reports showed that Harrod suffered from certain degenerative conditions in his intervertebral discs. Walling, however, failed to elicit any evidence indicating that the degenerative conditions were present at the time of the accident or that Harrod had experienced any pain prior to the accident.

         {¶ 8} At the close of evidence, Harrod moved for a directed verdict on the issue of whether Walling's negligence proximately caused him any injury. Over the objection of Walling, the trial court granted Harrod's motion, finding that reasonable minds could only conclude that Harrod was injured as a result of the accident. Therefore, due to the directed verdict, the jury was only charged with determining the nature and extent of Harrod's injury for purposes of awarding damages.

         {¶ 9} During closing argument, Harrod's trial counsel used an overhead projector to display a jury interrogatory for purposes of showing the jury the different categories of damages. Immediately after the interrogatory was placed in the jury's view, Walling's counsel raised an objection, requested to approach the bench, and discreetly asked Harrod's counsel to remove the interrogatory. At a sidebar, Walling's counsel pointed out that the interrogatory contained the original case caption, "Joshua Harrod v. USAA Insurance Company," which improperly referenced insurance.[1] Realizing the mistake, Harrod's counsel was amenable to the objection and continued his closing argument without the interrogatory. The jury was never informed as to why the interrogatory was removed from its view and no reference was ever made to the case caption.

         {¶ 10} At the end of his closing argument, Harrod's trial counsel told the jury that the evidence "supports an award consistent with the full available $100, 000." (Emphasis added.) Trans. p. 230. Walling objected on grounds that the phrase "full available $100, 000" was meant to inform the jury that Walling had liability insurance coverage. Walling requested an immediate curative instruction on the matter, but the trial court determined that a curative instruction would only emphasize the issue, which the court found to be innocuous. Walling also moved for a mistrial based on both of the references to insurance during closing argument, but the trial court overruled the motion.

         {¶ 11} Following deliberations, the jury returned a verdict in favor of Harrod in the amount of $52, 827.94. Walling now appeals from that judgment, raising two assignments of error for review.

         First ...

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