COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70591 GARY NORRIS : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ALLSTATE INSURANCE COMPANY : : : DEFENDANT-APPELLANT: DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-280859. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: David W. Goldense, Esq. Paul V. Wolf, Esq. Dubyak & Goldense Co., L.P.A. 920 Terminal Tower Cleveland, Ohio 44113-2206 For Defendant-appellant: Marilyn J. Singer, Esq. McNeal, Schick, Archibald & Biro Co., L.P.A. Suite 700 - Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 SWEENEY, JAMES D., P.J.: Defendant-appellant Allstate Insurance Company ("Allstate") appeals from the granting of plaintiff-appellee Gary Norris's ("Norris") post-trial motion for judgment notwithstanding the verdict ("JNOV") and motion for a new trial. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Norris is employed by Howard R. Selee & Associates, a surveying company. Howard Selee's personal automobile insurance policy was issued by Allstate. While standing in the middle of the two lane Chardon- 1 Windsor Road , on the broken yellow line separating the eastbound lane from the westbound lane performing his employer's business with a handheld radio, a surveyor's transit mounted on a tripod and surrounded by four orange cones, Norris was struck by a motor vehicle driven by Brian Carrabine in a hit-and-run accident on September 27, 1993, at approximately 2:30 p.m., causing severe injuries to Norris. The impact caused Norris to fly through the air, landing in a ditch by the side of the roadway approximately eighty (80) feet from the point of the impact. The blue colored company van carried all the equipment and safety material needed on the jobsite and was insured by the Allstate policy herein. This van brought Norris (the driver) and his crew chief, Randall Bigley (the passenger), to this jobsite and was parked along the north 1 Chardon-Windsor Road is located in the town of Huntsburg in Geauga County, Ohio. - 3 - berm of the highway, approximately thirty (30) to thirty-two (32) feet from Norris's surveyor's transit location at the time of the accident. Several orange traffic cones were placed between the side of the van and the roadway. The van's emergency flashers were 2 also operating at the time of the accident. Norris, looking at an angle perpendicular to the roadway, was sighting through the eyepiece of the surveyor's transit at the time of the accident while Mr. Bigley was two hundred feet away in a field driving stakes into the ground in response to the measurements derived from 3 the transit readings. The jury found through its answers to interrogatories that Norris was (1) not within a reasonable geographic perimeter of the van at the time of the accident (see jury interrogatory number 1) but (2) he did have a reasonable relationship with the van at the time of the accident (see jury interrogatory number 2), and 4 returned a verdict in favor of Allstate and against Norris. Subsequent to that unanimous verdict, and based on the 2 Mr. Bigley testified that one of the uses of the van at a jobsite is to attract attention as a safety device, so it is parked relatively close to the transit location with emergency flashers on. (R. 100-101, 111, 127.) 3 Brian Carrabine's personal automobile insurance policy tendered the limits of that policy ($15,000) to Norris. Additionally, Norris received the limits of his own automobile insurance policy's underinsured motorist coverage ($12,500). 4 These two jury interrogatories, which were successfully sought by the plaintiff, are derived from the two-part test enunciated in Joins v. Bonner (1986), 28 Ohio St.3d 398, which test is used for determining whether a particular vehicle is "occupied" for purposes of motor vehicle insurance cases. - 4 - interrogatory answers of the jury, Norris filed a motion for JNOV or in the alternative for a new trial. Subsequent to an oral hearing on this post-judgment motion the trial court, in granting the motion for JNOV, determined without elucidation in a half- sheet status form order that the jury verdict on the issue of reasonable geographic perimeter was not supported by the manifest weight of the evidence and ordered a new trial. See Civ.R. 50(B). This final order made no reference to having been decided on the basis of the alternatively raised motion for a new trial pursuant to Civ.R. 59, therefore it must be presumed that the trial court ordered the new trial under the auspices of a motion for JNOV pursuant to Civ.R. 50(B). This appeal by Allstate followed, presenting two assignments of error. I THE TRIAL COURT ERRED IN GRANTING PLAINTIFF- APPELLEE'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. The standard of review relative to a motion for JNOV is provided in Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275: The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of - 5 - the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. Also Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124. The trial court's preclusion in weighing the evidence or testing the credibility of the witnesses in ruling on a motion for JNOV is reiterated in Osler v. Lorain (1986), 28 Ohio St.3d 345, syllabus. In the case sub judice, the trial court disturbed the jury verdict on the express basis that the "jury verdict on the issue of reasonable geographic perimeter is against the manifest weight of the evidence..." As previously stated, this weighing of the evidence by the trial court in its determination of the motion JNOV is not allowed. Accordingly, the trial court erred in granting the motion for JNOV. However, recognizing that this appellate court has a duty to review the JNOV determination de novo, see Felden v. Ashland Chemical Co., Inc. (Cuyahoga, 1993), 91 Ohio App.3d 48, 55- 57, and Yachanin v. State Farm Ins. Co. (September 26, 1996), Cuyahoga App. No. 69842, unreported, 1996 Ohio App. LEXIS 4178, at 3-4, our analysis does not end at this point. The evidence clearly demonstrated that Norris was approximately thirty-two feet from the van at the time of the accident and that the van was in use as a piece of safety equipment to alert drivers to the presence of work being performed at the site and the need for caution in the area of the transit. The jury recognized this fact when it answered jury interrogatory number two - 6 - in the affirmative. Nevertheless, the jury determined that Norris was not within a reasonable geographic perimeter to the van. As detailed by the appellant before the trial court and before this court on appeal, this court has determined that, as a matter of law, a vehicle passenger who had left the safety of his vehicle to retrieve an item and who was 100-110 feet from the insured vehicle at the time of being struck by oncoming traffic had a reasonable relationship with the insured vehicle and was within a reasonable geographic distance to the insured vehicle. State Farm Mutual Automobile Ins. Co. v. Cincinnati Ins. Co. (June 17, 1993), Cuyahoga App. No. 62930, unreported. Accordingly, viewed in a light most favorable to Allstate, the evidence and testimony sufficiently demonstrated as a matter of law that Norris occupied the van at the time of the accident. Therefore, the trial court did not err in granting the motion for JNOV and ordering a new trial. The first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL TO PLAINTIFF-APPELLEE PURSUANT TO CIV.R. 50 AND, IN THE ALTERNATIVE, ABUSED ITS DISCRETION IN GRANTING A NEW TRIAL PURSUANT TO CIV.R. 59. Having determined in the previous assignment that the motion for JNOV was properly granted, we are forced to conclude by the express language of Civ.R. 50(B) that the trial court, after reopening the judgment, had the election of (1) ordering a new trial or (2) directing the entry of judgment. In the case sub - 7 - judice, the trial court elected to order a new trial. We find no abuse of discretion in the trial court's compliance with Civ.R. 50(B). The second assignment of error is overruled. Judgment affirmed and the case remanded for further proceedings. - 8 - It is ordered that appellee recover of appellant his 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. PATRICIA A. BLACKMON, J., and DAVID T. MATIA, 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 .