Court of Appeals of Ohio, Second District, Montgomery
JOSHUA HARROD, et al. Plaintiffs-Appellees
USAA INSURANCE COMPANY, et al. Defendants-Appellants
Appeal from Common Pleas Court Trial Court Case No.
A. SMALLEY, Attorney for Plaintiffs-Appellees.
JONATHON L. BECK, CHRISTINE N. FARMER, Attorney for
Defendant-Appellant, Jesse Walling.
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
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
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
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. 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.