COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67813 BUCKEYE UNION INSURANCE CO. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION STEVEN GRAY, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 231345 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: WALTER R. MATCHINGA, ESQ. TIMOTHY J. KORAL, ESQ. QUANDT, GIFFELS & BUCK CO. 1750 Standard Building 800 Leader Building 1370 Ontario Street Cleveland, Ohio 44114 Cleveland, Ohio 44113-1747 DYKE, J.: Defendants-Appellants, Steven Gray, et al., appeal the denial of their motion for prejudgment interest pursuant to R.C. 1343.03(C) brought as a counterclaim in response to Plaintiff- Appellee, Buckeye Union Insurance Company's action for declaratory judgment of alleged subrogation rights. In a single assignment of error, appellants argue that the trial court ignored evidence of appellee's failure to make a good faith effort to settle their uninsured motorist claim prior to arbitration. Upon review, we find appellant's assignment of error to be without merit. The judgment of the trial court is affirmed. Transcripts produced during hearings held in response to the above-cited complaint and counterclaim indicate that in August, 1984 appellant was injured in an automobile accident involving an insured motorist, one Janet Bagley. Appellant filed an action against Ms. Bagley, voluntarily dismissed same without prejudice and subsequently refiled the action which was set for trial on May 4, 1992. In January, 1985 appellant was injured in a second accident involving an uninsured motorist, one Robert Calvey. Because appellant was acting in the course and scope of his employment at the time of this second accident, appellant was considered to be 1 appellee's insured. After rejecting appellee's original settlement 1 Appellee was not insurer of the appellant or Ms. Bagley in the first accident. - 3 - offer of $5,000 on September 10, 1987 appellant exercised his right to demand arbitration pursuant to the provisions of appellee's policy and appointed his arbitrator during the latter part of 1987. On July 31, 1989 appellant wrote a letter to the Insurance Commissioner complaining that appellee had failed to appoint an arbitrator. Appellee appointed an arbitrator one month later and a hearing date was set for October, 1990. A few days prior to the hearing, appellee's counsel advised appellants' counsel that he had received an anonymous call indicating that the arbitration was "fixed" and that the appellant would win. To avoid the appearance of impropriety, the chairman of the panel recused himself. Appellant insisted on retaining the same arbitrator and appellee appointed a new arbitrator. The parties' arbitrators could not agree on the appointment of the panel chairman. Hence, pursuant to the arbitration provisions of the insurance contract, appellant filed a motion for a court-appointed chairman. The hearing was continued due to a death in the chairman's family and rescheduled for May 17, 1991. On that date, just prior to arbitration, the appellant rejected appellee's second settlement offer of $50,000. In a letter dated June 25, 1991 a divided arbitration panel found in favor of appellant in the amount of $283,031.67. Appellant accepted payment of the award on August 10, 1991 after executing a Proof of Loss, Release and Trust Agreement Assignment in favor of the appellee. Because appellee interpreted the arbitration letter to indicate that the award represented recovery for unapportionable - 4 - 2 injuries sustained as a result of both accidents, appellee filed a declaratory judgment action on April 29, 1992, to preserve its right to recover any moneys awarded to appellant in his refiled 3 action against Ms. Bagley. In answering appellee's complaint, appellant filed a counterclaim for prejudgment interest. The trial court dismissed appellee's action finding that it had gained no rights against Bagley by virtue of the release and trust agreement it executed with the appellant. The court denied appellant's counterclaim on the grounds that appellant never sought prejudgment interest until appellee filed its declaratory judgment action; that appellant never made an offer after rejecting appellee's initial offer; that appellee's conduct did not constitute a failure to bargain in good faith and that appellant signed a release agreement without ever raising the issue of prejudgment interest. Appellant advances the following assignment of error: 2 The majority issued the following opinion. In the matter before this panel, there is no medical evidence from which the panel can apportion the harm inflicted upon Mr. Gray in August 1984 as opposed to the harm inflicted by the incident of January 3, 1985. As a result, the panel is required to assess the full impact of these multiple injures upon Mr. Gray and make an award which is representative of the full measure of his injury. (Arbitrator's Award, Exhibit B, Appellee's Complaint for Declaratory Judgment.) 3 The record is silent as to whether the matter proceeded to trial or was settled in some other manner. - 5 - I THE TRIAL COURT ERRED IN IGNORING ALL THE RELEVANT, CREDIBLE, COMPETENT EVIDENCE WHICH SUPPORTED THE CLAIM OF APPELLANT THAT HE IS ENTITLED TO PRE-JUDGMENT INTEREST FOR APPELLEE'S FAILURE TO MAKE A GOOD FAITH EFFORT TO SETTLE THE SUBJECT CLAIM. The decision as to whether a party's settlement efforts indicate good faith is generally within the sound discretion of the trial court * * * [and] [t]his court will not overturn a finding on this issue unless the court's actions indicate an abuse of dis- cretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159 25 OBR 201, 203, 495 N.E.2d 572, 574. An abuse of discretion connoted more than an error of law or judgment, it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 552 N.E.2d 202. A party has not 'failed to make a good faith effort to settle' under 1343.03(C) if he has (1) fully cooperated in discovery proceed- ings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary offer. Kalain, supra, at syllabus (holding award of prejudgment interest an abuse of discretion). Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306, 309 Upon review, we cannot say that the trial court abused its discretion in denying appellant's counterclaim for prejudgment interest. In light of the fact that the appellant was in effect seeking recovery for injuries sustained in two different accidents, it was not unreasonable for the appellee to maintain a negotiating position that appellant's injuries were caused by the first - 6 - accident and that the second accident merely exacerbated them. Thus, we cannot say that appellee's September 10, 1987 offer of $5,000 upon receipt of $3,500 in medical bills and no determination of lost wages constituted a failure to negotiate in good faith. Nor can we say that appellee's May 17, 1991 offer of $50,000 based upon the same medicals and an economist's report of $200,000 in lost wages constituted a failure to negotiate in good faith as an apportionment of injuries and lost wages still remained a possibility. Appellee's eighteen-month failure to appoint an arbitrator is the most relevant fact advanced by the appellant. However, the transcript demonstrates that appellant is not without fault in this matter as he made no effort whatsoever to negotiate a settlement. During the six-year period which preceded arbitra- tion, appellant never made a monetary demand of appellee, never made an offer and never made a counter offer after rejecting appellee's $5,000 and $50,000 offers. In order to prevail on a motion for prejudgment interest, the moving party has the burden to prove that it did make a good faith effort to settle and that the losing party, who is to pay the tort judgment, failed to make a good-faith effort. Mills v. Dayton (1985), 21 Ohio App.3d 208. Also, R.C. 1343.03(C) requires the party seeking prejudgment interest to demonstrate its aggressive prejudgment settlement efforts and its adversaries' lack of aggressive prejudgment settlement efforts. Cox v. Fisher Fazio Foods (1984), 13 Ohio App.3d 336, 337-338. There is ample evidence - 7 - in the record of appellant's less than aggressive settlement efforts to support the trial court's denial. Additionally, it is not unreasonable, arbitrary or unconscionable for the trial court to deny prejudgment interest where appellant accepted payment of the arbitration award in "full 4 release and satisfaction" of the claim and failed to raise the issue of prejudgment interest for nearly a year and then only in response to appellee's declaratory judgment action. Also, while appellant testified that he reduced his award to judgment, we find 5 no documentary proof of same in the record. Upon review, we find that the trial court did not abuse its discretion in denying appellant's counterclaim for prejudgment interest. Appellant's sole assignment of error is overruled. The judgment of the trial court is affirmed. 4In executing appellee's "Proof of Loss, Release and Trust Agreement Assignment," appellant warranted the following: "Claimant hereby claims of this Company and will accept from this Company in full release and satisfaction in compromise settlement under this policy coverage the sum of $284,031.67." 5 Appellant testified that he filed a proposed application to reduce his (already satisfied) award to judgment on May 8, 1992 in the action he filed against Janet Bagely. It is arguable whether the Bagley court had jurisdiction address his application as the award sought to be reduced was predicated upon the accident he had with Robert Calvey. - 8 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .