COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70469 & 70621 DIANE SZARKA, ET AL. : : : PLAINTIFFS-APPELLEES/ : JOURNAL ENTRY CROSS-APPELLANTS : v. : AND : : OPINION STATE AUTOMOBILE INSURANCE : COMPANIES : : DEFENDANT-APPELLANT/ : CROSS-APPELLEE DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-278738. JUDGMENT: AFFIRMED - 70469; AND AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 70621. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellees/ R. Jack Clapp, Esq. Cross-appellants: Kyle L. Crane, Esq. R. Jack Clapp & Associates 2420 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114 For Defendant-appellant/ Robert G. Hurt, Esq. Cross-appellee: 7029 Pearl Road, Suite 310 Middleburg Heights, Ohio 44130 SWEENEY, JAMES D., P.J.: Defendant-appellant/cross-appellee State Auto Insurance Company ("State Auto") appeals from the denial of its pre-trial motion for summary judgment and motion in limine. See appellate case number 70469. Plaintiff-appellee/cross-appellant Diane Szarka ("Szarka") appeals from the denial of her motion for prejudgment interest and motion to tax additional costs. See appellate case number 70621. These two separate appeals have been consolidated for purposes of appellate review. For the reasons adduced below, we affirm appellate case number 70469, and affirm in part and reverse and remand in part appellate case number 70621. A review of the record on appeal indicates that Szarka was injured on October 30, 1992, when her vehicle was struck by a vehicle driven by Denise Wiley, an underinsured motorist. The tortfeasor's vehicle was insured by Progressive Insurance Company in the amount of $12,500. At the time of this accident, plaintiff's vehicle was insured by State Auto. Plaintiff was treated at Parma Hospital and released. Thereafter, plaintiff was treated by Dr. Jung Yoo. Plaintiff also notified her insurer, State Auto, of the accident and this claim was handled by State Auto claims representative Russell Tapaszi. In July of 1993, plaintiff was involved in a second motor vehicle accident, and was again treated by Dr. Yoo. In late 1993, the tortfeasor's company, Progressive Insurance Company, notified plaintiff that it would tender the $12,500 policy - 3 - limits to plaintiff in exchange for a full release on behalf of the insured. Plaintiff notified State Auto of this offer by Progressive. Mr. Tapaszi told plaintiff not to accept the Progressive offer, that State Auto would advance the $12,500 of the tortfeasor's policy to plaintiff in exchange for an assignment of plaintiff's rights against the tortfeasor to State Auto. Mr. Tapaszi also informed plaintiff that her policy of insurance contained a provision which limited actions by her against State Auto to two years from the date of loss. By correspondence dated December 16, 1993, an assignment of rights form was mailed to plaintiff by State Auto. Plaintiff did receive this form, but plaintiff did not return the form to State Auto. Subsequent to this correspondence, Mr. Tapaszi attempted to contact plaintiff three times in writing and by telephone, but was not successful. Finally, on September 19, 1994, Mr. Tapaszi was contacted by plaintiff by telephone. During this call, Mr. Tapaszi claimed that plaintiff promised to sign and return the assignment form, yet plaintiff does not recall that anything was said to indicate that it was imperative to return this form prior to October 30, 1994, to protect State Auto's subrogation rights. On October 3, 1994, Mr. Tapaszi was contacted by telephone by plaintiff's counsel, yet Mr. Tapaszi had no recollection that it was mentioned at that time that this form had to be returned by October 30, 1994. On October 14, 1994, plaintiff filed her original complaint against State Auto. On October 21, 1994, plaintiff filed her first - 4 - amended complaint against State Auto alleging damages due to the underinsured tortfeasor's negligence. Certified mail of service of summons of this amended complaint was received on October 28, 1994, by State Auto agent Mike McCormick. State Auto filed its answer to the amended complaint on November 22, 1994. On December 13, 1994, the executed assignment form was received by State Auto (approximately six weeks past the limitation period contained in the policy of insurance). On May 31, 1995, State Auto filed its motion for summary judgment supported by affidavits and documentary evidence. The motion argued that plaintiff-insured materially breached the contract of insurance when she failed to execute and return her assignment of rights against the tortfeasor to State Auto, thereby 1 destroying State Auto's subrogation rights. It is this failure by plaintiff that arguably precludes uninsurance/underinsurance coverage under the policy. State Auto additionally argued that 1 The relevant subrogation clause in the policy, at Part F- General Provisions, at page 7, states the following: Our Right To Recover Payment A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them. - 5 - plaintiff failed to institute a claim against the tortfeasor or, alternatively, failed to bring her action against State Auto within the statute of limitations contemplated by the policy, thereby representing a failure to satisfy the "exhaustion of payment" 2 clause contained in the policy. On June 29, 1995, plaintiff filed a brief in opposition to summary judgment supported by documentary evidence and excerpts from Mr. Tapaszi's deposition. The trial court denied the motion for summary judgment, without opinion and by half-sheet entry, on September 22, 1995. On October 10, 1995, State Auto filed: (1) a motion for reconsideration of the ruling on the motion for summary judgment; and (2) a motion in limine seeking to exclude the testimony of plaintiff's treating physician, Dr. Yoo, from the upcoming trial due to the failure of plaintiff to provide the defense with an expert's report from Dr. Yoo. On October 13, 1995, plaintiff filed a brief in opposition to the motion in limine, arguing that Dr. Yoo's report was provided the defense in a production of documents on February 8, 1995, and 2 The "exhaustion of payment" clause is contained in the policy in Endorsement PP0482 (03/91), which states the following in pertinent part: We will pay under this (UIM) coverage only if... (1) The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements. - 6 - supplemented on August 8, 1995. An affidavit provided by plaintiff's paralegal, who assembled the materials and forwarded them to defendant's counsel, supports this assertion. On October 16, 1995, plaintiff filed her brief in opposition to reconsideration of the ruling on summary judgment. On October 20, 1995, the trial court rescheduled the trial date to March 4, 1996, and ordered plaintiff to provide a copy of Dr. Yoo's report to defendant by October 27, 1995. The court also denied reconsideration of summary judgment. On October 25, 1995, plaintiff filed a notice of providing Dr. Yoo's expert report to defendant. On March 5, 1996, the trial court denied the motion in limine. The matter then proceeded to a jury trial and the jury returned a verdict in favor of plaintiff in the amount of $56,200. Thereafter, on March 13, 1996, plaintiff filed her (1) motion to tax additional costs and (2) motion for prejudgment interest. These motions were opposed by State Auto on March 22, 1996. The trial court denied these motions, without opinion and without benefit of an oral hearing, on April 5, 1996. State Auto's appeal will be discussed first. State Auto's first assignment of error provides: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR SUMMARY JUDGMENT. The standard of review for a summary judgment ruling was stated in Morton Internatl., Inc. v. Aetna Cas. & Sur. Co. (1995), 106 Ohio App.3d 653, 661: - 7 - Ohio law provides that before summary judgment can be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and that conclusion, when viewing the evidence in a light most strongly in favor of the party against whom the motion is made, is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Civ.R. 56(C). Likewise, "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. In order to determine whether there exists a genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law, a court may consider only "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 ***." Civ.R. 56(C). This court notes that while an insured must take reasonable steps to assist the insurer in protecting the insurer's subrogation rights, the responsibility for preserving these rights rests squarely with the insurer. McDonald v. Republic-Franklin Ins. Co. (1989), 45 Ohio St.3d 27; Nickschinski v. Sentry Ins. Co. (Cuyahoga, 1993), 88 Ohio App.3d 185, 189. The basis for the motion for summary judgment was that State Auto's right to subrogation was destroyed by plaintiff. The facts clearly demonstrate that plaintiff never settled with the tortfeasor before filing the complaint herein, which filing and - 8 - service of the pleading was prior to the expiration of the policy's limitation period protecting State Auto's subrogation rights. Upon the filing and service of the complaint, State Auto did not avail itself of protecting its subrogation rights by filing a third- party complaint against the tortfeasor. Additionally, there remains a question of material fact whether plaintiff materially breached the policy terms when she did not return the assignment form in a timely fashion. The deposition of Mr. Tapaszi discloses that he did not inform the plaintiff of the immediate need for the return of the completed assignment form. Finally, State Auto argues that plaintiff was required to sue the tortfeasor within the limitation period to protect State Auto's subrogation rights. Yet, nothing in the policy requires the insured to file suit against a tortfeasor in order to preserve State Auto's right of subrogation. Given that there exist questions of material fact as to which party subverted the insurer's subrogation right, the trial court did not abuse its discretion in denying the motion for summary judgment. State Auto's first assignment of error is overruled. State Auto's second assignment of error states: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION IN LIMINE. A motion in limine, if granted, is an interlocutory order on an evidentiary issue. State v. Grubb (1986), 28 Ohio St.3d 199, 201. To preserve the issue for purposes of appeal, an objection - 9 - must be raised at the time the evidentiary issue is reached at trial. State v. Brown (1988), 38 Ohio St.3d 305, paragraph three of the syllabus; Sutherland v. Nationwide Gen. Ins. Co. (1994), 96 Ohio App.3d 793, 812. In the case sub judice, the treating physician was plaintiff's first witness at the trial, yet State Auto did not object to the introduction of the medical testimony for purposes of preserving error associated with the motion in limine. Any error in the court's pre-trial ruling on the motion in limine is therefore waived. State Auto's second assignment of error is overruled. Appellate Case Number 70469 is affirmed. We now turn to the merits of Szarka's appeal of certain post- 3 judgment rulings in appellate case number 70621. Szarka's first assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF'S MOTION FOR AWARD OF PREJUDGMENT INTEREST AND REQUEST FOR HEARING AND DISCOVERY WITHOUT ALLOWING PLAINTIFF'S DISCOVERY AND WITHOUT THE REQUIRED HEARING. The following was stated by this court in Kluss v. Alcan Aluminum Corp. (June 14, 1995), Cuyahoga App. Nos. 66255 and 68459, unreported, at 9: There is respectable case authority among Ohio's appellate courts to support Alcan's argument that a trial court is not required to hold an oral hearing on a motion for prejudgment interest under R.C. 1343.03(C). See Novak v. Lee (1991), 74 Ohio App.3d 623, 3 State Auto has not filed a brief in opposition to the assignments presented by cross-appellant-Szarka. - 10 - 631 ("There is a substantial diversity of opinion as to whether the statute requires a hearing"); Bitzer v. Lincoln Elec. Co. (1990), 67 Ohio App.3d 53; Laverick v. Children's Hosp. Med. Ctr. of Akron, Inc. (1988), 43 Ohio App.3d 201; Younger v. Buckeye Local School Dist. (1992), Summit App. No. 2065, unreported. However those authorities must give way to the Supreme Court's recent pronouncement on the issue which states that "*** the trial court must hold a hearing on the [prejudgment interest] motion." Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 658. On this basis, this court in Kluss reversed and vacated the denial of a motion for prejudgment interest where that trial court ruling was accomplished without an oral hearing on the motion, and remanded the matter back to the trial court with instructions to hold an oral hearing on the motion for prejudgment interest. On the authority of Kluss, we likewise reverse and vacate the trial court ruling on Szarka's motion for prejudgment interest and remand same to the trial court for an oral hearing in accordance with Moskovitz. Szarka's first assignment of error is affirmed. Szarka's second assignment of error states the following: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF'S MOTION TO TAX ADDITIONAL COSTS. In her motion, Szarka sought the following items to be taxed as additional costs to be payable by State Auto or the court: (1) the filing fee [$100.00] of the complaint; (2) transcript [$115.50], attendance of reporter [$55.00] and videotape recording [$211.00] of deposition of Dr. Widmer presented at trial [total- - 11 - $381.50]; (3) transcript [$227.15], attendance of reporter [$110.00] and videotape recording [$235.50] of deposition of Dr. Yoo presented at trial [total-$587.65]; and (4) private court reporting agency attendance at trial to play back the videotaped depositions of Drs. Widmer and Yoo [total-$206.25]. Rule 12(D) of the Rules of Superintendence for Courts of Common Pleas promulgated by the Supreme Court provides the following: (D) Costs. (1) Video Depositions. (a) The expense of videotape as a material, shall be borne by the deponent. (b) The reasonable expense of recording testimony on videotape shall be costs in the action. (c) The expense of playing the videotape recording at trial shall be borne by the court. (d) The expense of playing the videotape recording for the purpose of ruling upon objections shall be borne by the court. (e) The expense of producing the edited version of the videotape recording shall be costs in the action, provided that the expense of the videotape, as a material, shall be borne by the proponent of the testimony. (f) The expense of a copy of the videotape recording and the expense of an audiotape recording of the videotape sound track shall be borne by the party requesting the copy. (2) Videotape Trials. Subsection (D)(1) applies to videotape trials. - 12 - A review of the invoices attached to the motion to tax additional costs indicates that the expenses of taking/recording the testimony of Drs. Widmer and Yoo [$266.00 and $345.50, representing the attendance of the reporter and the videotape recording] shall be costs in the action pursuant to C.P.Sup.R. 12(D)(1)(b). See Coleman v. Jagniszcak (Cuyahoga, 1995), 104 Ohio App.3d 413, 415-416. Additionally, the cost of playing the videotape recordings of Drs. Widmer and Yoo at trial [$206.25] are to be borne by the court, not State Auto, pursuant to C.P.Sup.R. 12(D)(1)(c). Id. at 416. Also, the cost of the typed deposition transcripts for the two doctors is not awardable as costs. Wiltsie v. Teamor (Cuyahoga, 1993), 89 Ohio App.3d 380. A problem with these charges as costs is that the invoices do not separately charge for the videotape materials used in recording the doctors' depositions. These videotape material costs are to be borne by the deponent (Szarka) pursuant to C.P.Sup.R. 12(D)(1)(a) and (e), and must be ascertained by the trial court before deducting these material costs from the costs assessed. Accordingly, the denial of the motion to tax additional costs is reversed in part and remanded so that the trial court can assess these costs less the cost of (1) the videotape cassette materials and (2) the transcripts of the two doctors [$115.50 + $227.15 = $342.65]. The filing fee for the complaint is not totally recoverable as additional costs and Szarka does not provide authority for its taxation as an additional cost. Pursuant to R.C. 2303.20, the - 13 - clerk of the common pleas court may charge certain fees associated with the filing of a lawsuit and these have already been taxed as costs in this action when the court, in its final order, assessed costs against State Auto. Szarka's attempt to recover the full value of the filing fee, over and above those sums charged by the clerk of courts as costs, is without merit. Szarka's second assignment of error is affirmed in part and overruled in part. To summarize: appellate case number 70469 is affirmed; appellate case number 70621 is affirmed in part and reversed and remanded in part. - 14 - It is ordered that appellee and appellant shall each bear their own 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. Exceptions. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .