COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70826 CAROLYN PFEIFFER MIKO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LINCOLN NATIONAL CORPORATION : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-300134. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Michael J. Feldman, Esq. 55 Public Square Suite 900 Cleveland, OH 44113 For Defendant-Appellant: James L. Glowacki, Esq. 510 Leader Building Cleveland, OH 44114 Christopher R. Claflin, Esq. Law Office of James L. Glowacki 500 Leader Building 526 Superior Avenue Cleveland, OH 44114 -3- DAVID T. MATIA, P.J.: Lincoln National Corporation, defendant-appellant, appeals the Cuyahoga County Court of Common Pleas jury award of $98,000 to Carolyn Pfeiffer Miko, plaintiff-appellee. Defendant-appellant raises two assignments of error concerning: 1) the trial court's refusal to set off the sum of money the tortfeasor paid to plaintiff-appellee and 2) the propriety of plaintiff-appellee's closing argument. For the following reasons, this appeal is affirmed in part, reversed in part and remanded back for a recalculation of damages consistent with this opinion. I. STATEMENT OF FACTS On February 8, 1993, Carolyn Pfeiffer Miko, plaintiff-appellee, was involved in an automobile collision with an underinsured motorist, David Allen, in Shaker Heights, Ohio. The underinsured motorist negligently failed to yield the right of way, thereby causing the collision. David Allen's insurance company tendered the policy limits to plaintiff-appellee in the amount of $25,000. Thereafter, plaintiff-appellee filed a complaint against her underinsured motorist carrier, Lincoln National Corporation (dba American States Insurance Company). The policy in effect at the time of the accident provided her with $300,000 in underinsured coverage. The complaint sought damages in an amount in excess of $25,000 for the injury to plaintiff-appellee and for an amount in excess of $25,000 for loss of consortium to her husband. The parties stipulated, among other things, to the negligence of the underinsured motorist regarding the accident and that -4- plaintiff-appellee's automobile insurance policy provided up to $300,000 in underinsured motorist coverage at the time of the accident. It was also stipulated by the parties that the underinsured motorist's insurance company paid plaintiff-appellee $25,000 which was the limit of his policy. Thus the issues left for the jury to decide was whether the negligence of the underinsured motorist was the proximate cause of injuries suffered by plaintiff-appellee and if so, the appropriate damages to plaintiff-appellee and her husband. The trial began on May 15, 1996. Following the jury's deliberations, a verdict in the amount of $98,000 was returned in favor of plaintiff-appellee and no damages were awarded for her husband's loss of consortium claim. Thereafter, the trial court refused to set off the $25,000 amount paid to plaintiff-appellee by the underinsured motorist against the jury award. Defendant- appellant timely files this appeal. II. FIRST ASSIGNMENT OF ERROR Lincoln National Corp., defendant-appellant, states as its first assignment of error: I. THE TRIAL COURT ERRED IN FAILING TO PROPERLY SET OFF THE AMOUNT PAID BY THE UNDERINSURED TORTFEASOR FROM THE JURY VERDICT. -5- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANT-APPELLANT TO SET OFF THE SUM PAID BY THE TORTFEASOR AGAINST THE DAMAGES AWARDED TO PLAINTIFF-APPELLEE. Defendant-appellant argues the trial court erred in refusing to permit a set-off of $25,000 to the jury award. Specifically, defendant-appellant argues the set-off must be against the "damages" of the insured and not the written limits of underinsured coverage. Since the jury was not instructed to set off or take into account the $25,000 that was paid on behalf of the underinsured motorist/tortfeasor, the jury award of $98,000 represents the total amount of damages the jury felt appropriate to compensate plaintiff-appellee. Accordingly, defendant- appellant argues, it is entitled to set off the $25,000 that the tortfeasor paid in order to determine the amount of underinsured motorist payment due plaintiff-appellee. Defendant-appellant's first assignment of error is well taken. B. STANDARD OF REVIEW: UNDERINSURANCE COVERAGE. "The underlying public policy for provision of uninsured and underinsured motorist coverage is to assure that an injured person receive at least the same amount of compensation whether the tortfeasor is insured or uninsured." Blue Cross v. Hrenko (1995), 72 Ohio St.3d 123. To attain this result, the General Assembly enacted R.C. 3937.18 requiring every liability insurer in this state to offer uninsured/underinsured coverage with its liability policies. Kehoe v. Pline (Feb. 22, 1996), Cuyahoga App. No. 69182, unreported. -6- Former R.C. 3937.18(A)(2) required: [U]nderinsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for an insured against loss for bodily injury, sickness, or disease, including death, where the limits of coverage available for payment to the insured under all bodily injury liability bonds and insurance policies covering persons liable to the insured are less than the limits for the insured's uninsured motorist coverage at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1739-1740. In Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, the Ohio Supreme Court held at paragraph three of the syllabus, "[a]n underinsurance claim must be paid when the individual covered by an uninsured/underinsured policy suffers damages that exceed those monies available to be paid by the tortfeasor's liability carriers." Subsequently, the Ohio Supreme Court has clarified paragraph three of the syllabus of Savoie to indicate that the insurer's set-off applies against the insured's damages, not against the policy limit of underinsurance coverage. See Hillman v. Hastings Mut. Ins. Co. (1994), 68 Ohio St.3d 238, 239 (Pfeifer, J., concurring); Newman v. United Ohio Ins. Co. (1994), 69 Ohio St.3d 1204, 1205 (Douglas, J., joined by A.W. Sweeney, Resnick, F.E. Sweeney and Pfeifer, J.J., concurring in denial of motion for -7- reconsideration). However, in an effort to supersede the holding in Savoie and clarify its original intent, the General Assembly amended R.C. 3937.18(A), effective October 20, 1994, to provide in part: Underinsured motorist coverage is not and shall not be excess insurance to other applicable liability coverage, and shall be provided only to afford the insured an amount of protection not greater than that which would be available under the insured's uninsured motorist coverage if the person or persons liable were uninsured at the time of the accident. The policy limits of the underinsured motorist coverage shall be reduced by those amounts available for payment under all applicable bodily injury liability bonds and insurance policies covering persons liable to the insured. Am.Sub.S.B. No. 20, 145 Ohio Laws, Part I, 204, 210-211. Thus it is clear that as amended R.C. 3937.18(A) provides for an off-set of the amounts available for payment under the tortfeasor's bodily injury liability coverage against the limits of the underinsured motorist coverage as opposed to the insured's damages. See Cole v. Holland (1996), 76 Ohio St.3d 220, 224. Since the legislature did not specifically express its intention for the amended statute to have a retroactive effect, R.C. 3937.18(A), as amended, must be applied prospectively. R.C. 1.48; Nease v. Med. College Hosp. (1992), 64 Ohio St.3d 396; Cartwright v. The Maryland Ins. Group (1995), 101 Ohio App.3d 439. C. AS PLAINTIFF-APPELLEE'S CAUSE OF ACTION ACCRUED PRIOR TO AMENDED R.C. 3937.18(A), THE TRIAL COURT ERRED IN REFUSING TO SET OFF MONIES PAID TO PLAINTIFF-APPELLEE BY THE TORTFEASOR'S INSURANCE COMPANY. -8- It is undisputed that the jury was informed plaintiff-appellee received $25,000 from the tortfeasor's automobile insurance. It is equally clear that the jury awarded plaintiff-appellee $98,000 in damages. Plaintiff-appellee asserts that defendant- appellant's argument is based upon the trial court's failure to properly instruct the jury with regards to the set-off. We disagree. From a review of the parties' briefs, it is clear defendant- appellant argues since the jury found plaintiff-appellee suffered damages to the extent of $98,000 and since the tortfeasor's insurance company paid $25,000 to plaintiff-appellee, defendant- appellant may off set the $25,000 against the total damages suffered by plaintiff-appellee and is therefore liable in the amount of $73,000 rather than the full $98,000. As stated, if the former R.C. 3937.18(A), as interpreted by Savoie, applies, then the set-off must be against the insured's damages and defendant-appellant would only be liable to plaintiff-appellee in the amount of $73,000. However, if amended R.C. 3937.18(A) applies, then the set-off applies against the limits of plaintiff-appellee's underinsured motorist coverage and defendant-appellant would be liable to plaintiff-appellee for the amount of $98,000. See, Kehoe, supra. In this case, the accident occurred on February 8, 1993, prior to the amendment of R.C. 3937.18(A). In keeping with Cole, supra, since former R.C. 3937.18(A) applies to the present case, the trial court erred in refusing to permit the $25,000 set off -9- against the total damages awarded to plaintiff-appellee. The decision of the trial court is reversed and this case is remanded back for a re-calculation of damages consistent with this opinion. Defendant-appellant's first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR Lincoln National Corp., defendant-appellant, states as its second assignment of error: II. THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF/APPELLEE TO MAKE A SPECIFIC DEMAND FOR MONEY FOR THE FIRST TIME IN REBUTTAL FINAL ARGUMENT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN PERMITTING PLAINTIFF-APPELLEE TO MAKE A SPECIFIC DEMAND FOR MONEY IN REBUTTAL FINAL ARGUMENT. Defendant-appellant argues the trial court erred in permitting plaintiff-appellee's counsel to make a specific monetary demand in the rebuttal portion of final arguments. Specifically, defendant-appellant argues since it did not have the opportunity to respond to the specific monetary amount, the trial court erred in permitting plaintiff-appellee's counsel to make such argument/demand. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. Initially we note that closing arguments are not evidence. See Prutny v. Standen (May 4, 1994), Medina App. No. 2263-M, unreported. In closing arguments, counsel is permitted to freely -10- discuss the facts; to arraign the conduct of parties; to impugn, excuse, justify, or condemn motives so far as they are developed by the evidence. See 90 Ohio Jurisprudence 3d (1980), 406 Permissible Limits of Argument. It is for this reason trial courts customarily give considerable latitude in final argument. Coffee v. Shenk (1974), 39 Ohio App.2d 156. Stated differently, a trial court has the discretionary power to determine whether the bounds of permissible closing arguments have been exceeded. An appellate court will not reverse the trial court's decision unless there has been an abuse of its discretionary power. Pang. v. Minch (1990), 53 Ohio St.3d 186. Therefore, there must be proof that the court's attitude is "unreasonable, arbitrary or unconscionable." Beacon Journal Pub. Co. v. Stow (1986), 25 Ohio St.3d 347. In closing rebuttal, it is outside the scope of permissible argument to interject, for the first time, a specific monetary figure that the jury should award as damages. Grossnickle v. Village of Germantown (1965), 3 Ohio St.2d 96. The primary reason for prohibiting such statements is the fact that opposing counsel is not given the opportunity to respond. Id. at 102; Weiss v. Team Trucking, Inc. (October 1, 1981), Cuyahoga App. No. 43380, unreported. Normally, if counsel impermissibly requests a specific monetary amount from the jury in closing rebuttal, the trial court can alleviate any prejudicial effect by permitting defense -11- counsel the opportunity to rebut and/or by giving a curative instruction to the jury. However, if the trial court does neither, the defendant may be entitled to a new trial if undue prejudice is demonstrated. Grossnickle, supra. C. SINCE DEFENDANT-APPELLANT HAS FAILED TO DEMONSTRATE ANY PREJUDICIAL EFFECT, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING PLAINTIFF-APPELLEE'S COUNSEL TO REQUEST A SPECIFIC MONETARY AMOUNT IN CLOSING REBUTTAL. Contrary to plaintiff-appellee's assertions, we find the following colloquy between defense counsel and the trial court demonstrates this issue has been properly preserved for appeal: THE COURT: We are at sidebar (sic). [DEFENSE COUNSEL]: Plaintiff's counsel has closed on the first half of his argument and he's not stated a monetary amount of damages. I have objected to him for making a monetary statement to the jury, preobjected to him making a monetary amount for damages in closing argument. I believe the case law, I don't have it here available, to me indicates that if he doesn't make a monetary amount in opening, he is precluded from making a monetary amount in closing. We have a right to know exactly what he is going to ask for in damages and we be able to rebut that (sic). THE COURT: Do the parties choose to incorporate by reference the pleadings? [DEFENSE COUNSEL]: He hasn't mentioned it yet. [PLAINTIFF'S COUNSEL]: Yes, I will incorporate. THE COURT: I will allow the parties to incorporate. Is there a reflection in the pleadings about what amount of money? By way of the stipulation that you have given me, -12- you acquiesce it could be up to three hundred thousand dollars. The objection is noted. If you give me a case, I will stop him from doing it. My understanding is different than yours because although it would be ideal to have that occur, it is not unusual to have parties bring it up for the first time, the money aspect in final. Subsequently, after specifically mentioning the various medical bills incurred by plaintiff-appellee, plaintiff- appellee's counsel stated the following: *** My opinion is that the case is worth five hundred thousand dollars. There is no question in my mind that is the value of this case. I can't come to you and ask for five hundred thousand dollars. It is not part of her contract. But I think you should give her what's in that contract to compensate her and make her whole as best she can be. Thank you very much. We find these comments to fall outside the scope of proper rebuttal in closing argument. However, we do not find these comments are of such a prejudicial nature as to warrant a finding that the trial court abused its discretion in permitting them. In this case, the trial court delivered curative instructions in an effort to ensure the jury deliberated in an appropriate manner. Not only did the trial court instruct the jury that closing arguments did not constitute evidence and should not be considered as such, it also, instructed the jury that in determining the proper amount of damages, they should discuss what has been proven by a preponderance of the evidence and then -13- come to a figure that fairly and fully compensates the plaintiff for the proven injury. Juries are presumed to have followed such instructions. State v. Zuern (1987), 32 Ohio St. 3d 56 We further note that the remarks made to the jury had little impact on the jury since the verdict they returned was for an amount significantly less than what plaintiff-appellee's counsel had requested. See Pruitt v. Midwest Transit (June 23, 1995), Muskingum App. No. 94-21, unreported. For these reasons, we find defendant-appellant failed to demonstrate any prejudicial effect. Accordingly, the trial court's actions did not constitute an abuse of discretion. Defendant-appellant's second assignment of error is not well taken. Judgment is affirmed in part, reversed in part and remanded for re-calculation of damages consistent with this opinion. -14- This cause is affirmed, in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee share the costs herein. It is ordered that a special mandate be sent to said 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. DYKE, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA 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 .