COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72619 ERNESTINE KELLOGG : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JOHN DOE : : Defendant : : and : : STATE FARM INSURANCE COMPANIES: : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 26, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 280,494 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: LOUIS J. CARLOZZI Attorney at Law Gonda & Associates 75 Public Square, #920 Cleveland, Ohio 44113 For defendant-appellee G. MICHAEL CURTIN State Farm Insurance: Attorney at Law Keller and Curtin Co., L.P.A. 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 KENNETH A. ROCCO, J.: Appellant appeals the trial court's denial of her motion for prejudgment interest on an award of damages. Although the trial -2- court apparently ruled on appellant's motion under R.C. 1343.03(C), we find that appellant's motion for prejudgment interest was properly denied pursuant to R.C. 1343.03(A). As the trial court reached the proper result and did not abuse its discretion in denying appellant's motions for prejudgment interest, we affirm. On October 20, 1992, appellant Ernestine Kellogg was driving her automobile on Interstate 77. As she was exiting I-77, her car was rear-ended by a vehicle driven by John Doe, an individual not identified. Doe left the scene of the accident after stopping briefly. Appellant suffered facial and jaw injuries as a result of the accident. Appellant sought recovery under her uninsured motor- ist coverage. Settlement negotiations as to the amount due to appellant from State Farm were unsuccessful. Appellant filed suit for damages, seeking recovery against John Doe and State Farm on November 17, 1994, pursuant to an uninsured motorist coverage provision in her insurance policy. Appellee stipulated to appellant's active policy for underinsured or uninsured motorist coverage through a State Farm automobile insurance policy. Appellant's final demand for recovery on the day of trial was $75,000, reduced from $125,000, and appellee's final offer increased on that day from $10,000 to $15,000.00. Appellant prevailed at trial and received a jury award of $30,000 in damages on February 14, 1997. Appellant subsequently moved for prejudgment interest under R.C. 1343.03(C), to be computed from the date of the accident, October 20, 1992. Appellant later filed a supplemented motion, applying for prejudg- -3- ment interest under either R.C. 1343.03(A) or R.C. 1343.03(C). The trial court denied her motion for prejudgment interest. Appellant's sole assignment of error is that the trial court erred in denying her motion for prejudgment interest. The trial court denied the motion based, in part, on the judge's personal knowledge of settlement discussions at pre-trial and trial stages and pursuant to Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, and Kalain v. Smith (1986), 25 Ohio St.3d 157. We find that appellant's motion for prejudgment interest was properly denied pursuant to R.C. 1343.03(A). Although the trial court apparently ruled on appellant's motion for prejudgment interest on the basis of R.C. 1343.03(C), the trial court reached the proper result. The trial court's determination that appellee made a good faith effort to settle is not unreasonable, arbitrary, or uncon- scionable. The motion for prejudgment interest was properly denied. I. STANDARD OF REVIEW. Appellant's sole assignment of error is that the trial court erred in denying her motion for prejudgment interest. The trial court denied the motion based, in part, on the judge's personal knowledge of settlement discussions at pre-trial and trial stages and pursuant to Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, and Kalain v. Smith (1986), 25 Ohio St.3d 157. A decision regarding an award of prejudgment interest is within the discretion of the trial court. Cox v. Fisher Fazio -4- Foods, Inc. (1984), 13 Ohio App.3d 336, 337. Therefore, a re- viewing court will not reverse a lower court's decision unless the court has abused its discretion. Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340, 354. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. See, also, Pawul v. Pawul (1996), 113 Ohio App.3d 548, 551. An appellate court may, however, decide an issue on grounds different from those determined by a trial court, provided that the evidentiary basis for the appellate court's determination was made part of the record below. State v. Peagler (1996), 76 Ohio St.3d 496 (syllabus). II. PREJUDGMENT INTEREST PURSUANT TO R.C. 1343.03(A). The Ohio Supreme Court has stated that an action by an insured against an insurance carrier for payment of uninsured or underinsured motorist benefits is a cause of action sounding in contract. Miller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624. See, also, Colvin v. Globe American Cas. Co. (1982), 69 Ohio St.2d 293, 295; Motorists Mut. Ins. Co. v. Tomanski (1971), 27 Ohio St.2d. 222, 223. See, also, Hooker v. Nationwide Mut. Ins. Co. (June 19, 1997), Cuyahoga App. No. 71472, unreported, at 12. We have reasoned that since such an action seeks essen- tially to determine [the insurer's] contractual obligations to [the insured], the action itself sounds in contract rather than tort. -5- Hunt v. Nationwide Mut. Ins. Co. (July 6, 1995), Cuyahoga App. No. 64597, unreported, at 9. The payment of post-judgment and prejudgment interest is governed by R.C. 1343.03. Payment of such interest in a cause of action sounding in contract is governed by R.C. 1343.03(A), which provides that when money becomes due and payable upon any bond, bill, note, or other instrument of writing, *** and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at ten per cent per annum ***. Any post-judgment or prejudgment interest, then, is computed from the time at which the money becomes due and payable. Where the parties do not agree as to the amount of recovery due and payable under an insurance contract, the money does not become due and payable until the jury verdict is rendered. Eagle Am. Ins. Co. v. Frencho (1996), 111 Ohio App.3d 213, 221. In Eagle, the Tenth District Court of Appeals noted that by the terms of the insurance contract itself, the money did not become `due and payable' until the jury verdict was rendered. Id. The court held that interest would be calculated from the date the judgment was rendered, thus precluding an award of prejudgment interest. Id. The court rejected the contention that an uninsured motorist claim should be subject to prejudgment interest under R.C. 1343.03(C), rather than R.C. 1343.03(A). Id. at 220. -6- As in Eagle, the contract between appellant and appellee here provides that there must be agreement between the insurer and the insurance company as to fault and amount before a claim will be paid. ( 6997AU Amendment of Uninsured Motor Vehicle Coverage. ) The contract provides that if there is no agreement, the dispute shall be resolved through arbitration. If one party refuses to agree to arbitration, the insured shall file a lawsuit against the driver or owner of the uninsured motor vehicle and the insurance company. Once a final judgment is secured, the insurance company will be bound by the result. As in Eagle, then, where the parties do not agree as to the amount of recovery due and payable under the insurance contract, the money does not become due and payable until the jury verdict is rendered. Eagle, supra, at 221. Appellee would direct this court to the reasoning of one panel of the Tenth District Court of Appeals, which held that a claim for uninsured motorist coverage is a tort claim rather than a contract claim within the meaning of the state's prejudgment interest statute. Woodsv. Farmers Ins. of Columbus, Inc. (1995), 106 Ohio App.3d 389, 397. With all respect, we decline to follow this line of reasoning. The Supreme Court of Ohio has plainly stated that an action by an insured against an insurance carrier for payment of uninsured or underinsured motorist benefits is a cause of action sounding in contract. Miller, supra at 624. See, also, Hooker, supra at 12, and cases cited therein. Furthermore, we note that another panel of the Tenth District, one year later, came to the opposite conclusion and found that -7- prejudgment interest on a claim for underinsured motorist benefits is governed by R.C. 1343.03(A). Eagle, supra, at 220. Although the trial court apparently ruled on appellant's motion under an R.C. 1343.03(C) analysis, we find that appellant's motion for prejudgment interest was properly denied pursuant to R.C. 1343.03(A). An appellate court may decide an issue on grounds different from those determined by the trial court, provided that the evidentiary basis for the appellate court's determination was made part of the record below. Peagler, supra, at 496 (syllabus). Despite the differing grounds for its ruling, the trial court reached the proper result. The trial court's determination is not unreasonable, arbitrary or unconscionable and is, thus, not a reversible abuse of discretion. Appellant's motion for prejudgment interest was properly denied. Appellant's sole assignment of error is without merit and is overruled. Therefore, we affirm the Court of Common Pleas of Cuyahoga County in its denial of appellant's motion for prejudgment interest. -8- It is ordered that appellee recover of appellant 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 Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, P.J. and JAMES D. SWEENEY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .