COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 84331 & 84739 JOHN LENART, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : SHARON A. COLEMAN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 21, 2005 CHARACTER OF PROCEEDING: : Civil appeals from : Common Pleas Court : Case No. 464032 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: D. Scott Kalish, Esq. The Lorenzo Carter Building 1360 West 9th Street, Suite 410 Cleveland, Ohio 44113 For defendant-appellant: Mark S. Hura, Esq. WILLIAMS, SENNETT & SCULLY CO., L.P.A. 2241 Pinnacle Parkway Twinsburg, Ohio 44087-2367 -2- MICHAEL J. CORRIGAN, J.: A jury awarded appellee, John Lenart ("Lenart"), $70,000 for damages he sustained from a motor vehicle accident with appellant, Sharon Coleman ("Coleman"), who admitted liability. In addition, the trial court awarded Lenart prejudgment and post-judgment interest. Coleman now appeals. For the following reasons, we affirm the jury award of damages as well as the trial court's award of prejudgment and post-judgment interest. I. In her first assignment of error, Coleman contends that the trial court erred when it granted Lenart's motion in limine and excluded from trial the photographs of the vehicles involved in the accident, the estimate to repair Lenart's vehicle, and any testimony regarding the impact of the collision. Because Coleman did not preserve this issue for appeal, Coleman 's contention is waived. Although it is well-established that the admissibility of evidence at trial is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion, a trial court's ruling on a motion in limine prior to trial is merely preliminary until the issue is addressed at trial by way of a proffer. State v. Grubb (1986), 28 Ohio St.3d 199, 203, 503 N.E.2d 142. In Grubb, the Supreme Court of Ohio held as follows: -3- "[I]t is incumbent upon a [party] who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal." Id.; see, also, Garrett v. City of Sandusky, 68 Ohio St.3d 139, 141, 1994-Ohio-485, 624 N.E.2d 704. Unless the claimed error on a motion in limine is preserved by an objection, proffer, or ruling on the record at trial, it is waived. Here, six days prior to trial, the trial court granted Lenart's motion in limine and preliminarily excluded the photographs of the vehicles, the repair estimate, and any testimony as to the impact of the vehicles from evidence at trial. There was no ruling on the record at trial on this evidence because Coleman failed to make a proffer of such evidence or object to the exclusion of such evidence. Coleman's failure to do so waives this evidentiary issue on appeal and, as a result, this appellate court "need not review the propriety"of the trial court's order granting Lenart's motion in limine of such evidence. See Grubb, 28 Ohio St.3d at 203; Cf. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 86, 482 N.E.2d 1248 (holding that such failure to object to the exclusion of an expert witness did not waive the error on appeal where appellants'"motion in limine"specifically requested -4- a final order preventing the introduction of the expert witness at trial and the hearing on such "motion in limine" was conducted immediately prior to trial.) Thus, Coleman's first assignment of error is overruled. II. Coleman argues, in her second assignment of error, that the trial court erred when it asked Lenart's counsel, during the direct examination of Lenart, to explain "COBRA" to the jury. Coleman asserts that the COBRA interpretation given to the jury prejudiced Coleman. On direct examination, Lenart was asked why he didn 't seek COBRA during the seven-month gap in medical treatment he sought after the motor vehicle accident. Lenart explained that he became unemployed and could not afford health insurance under COBRA. At that point, the trial court asked Lenart's counsel to explain COBRA to the jury. Lenart's counsel stated as follows: "COBRA is when the doors are shut on a company and you 're unemployed. You can apply to the government for insurance coverage. The problem is what John is telling you is it's so darn expensive. It 's kind of not feasible to pay for, especially in light of the fact that you're unemployed." After Coleman's counsel objected, the trial court stated as follows: -5- "Well, no, but I understand. COBRA Continuation of Benefits Act. And again, if people have never been unemployed or leave their employer they have no idea what it is. And I think the jury needs to know what COBRA is because I'm sure if you got back there then you would send a little note on what's COBRA so now you know. Okay?" Also during direct examination, Lenart was asked to explain the process in finding Dr. Mars, the doctor who saw Lenart after the seven-month gap in medical treatment. Lenart testified that it took "alot [sic] of phone calls to get a doctor that would take care of [him] without any insurance or get paid right upfront [sic]"but that Lenart's counsel found him. Lenart explained that the agreement with Dr. Mars was that he put a "lien on this case." Then, the following occurred: "Q. Kind of like the good old health insurance company? "A. I have to pay him one way or the other period. "MR. HURA: Objection, your Honor, with the continuing reference to insurance. "THE COURT: Objection overruled. I believe the testimony given was the reason he did not continue with physical therapy is because there was no health insurance to pay for this. So I think maybe that clarifies it. Its health insurance that COBRA covers." The Supreme Court of Ohio has set forth the following criteria in determining whether a trial judge's remarks were prejudicial: -6- "(1) the burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel." J. Norman Stark Co., L.P.A. v. Santora, Cuyahoga App. No. 81543, 2004-Ohio-5960, -25, quoting State v. Wade (1978), 53 Ohio St.2d 182, 188, 373 N.E.2d 1244. Coleman asserts that it was not for the trial court or Lenart's counsel to explain COBRA to the jury because neither were experts in COBRA. However, COBRA, the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Section 1161 et seq., Title 29 U.S. Code, does not require an expert to explain its meaning to the jury. While neither the trial court nor Lenart 's counsel accurately and completely explained COBRA to the jury, Coleman fails to meet her burden that the explanations prejudiced her. Based on Lenart's testimony during direct and cross examinations, the jury was able to determine whether there was a seven-month gap in treatment because he was no longer injured from the motor vehicle accident or because he could not afford to pay for the medical treatment out of his own pocket. Regardless of the COBRA explanations, the fact that there was a seven-month gap in medical -7- treatment remains. Because Coleman cannot demonstrate any prejudice based on the COBRA explanations given by Lenart's counsel and the trial court, Coleman's second assignment of error is overruled. III. For her third assignment of error, Coleman asserts that the trial court erred in permitting Lenart's medical expert, Dr. Mars, to testify about testing and treatment beyond the scope of his medical report that was not provided to defense counsel. Coleman contends that because she did not have any supplemental reports when Dr. Mars was deposed, any testimony beyond the date of the original report issued by Dr. Mars should have been excluded by the trial court. However, Coleman's contention is without merit. Coleman's counsel at trial was not Coleman 's counsel at the inception of the case. According to Coleman's counsel at trial, he did not receive any supplemental reports from Dr. Mars when the case and the file was given to him. At trial, Lenart 's counsel informed the trial court that Dr. Mars' expert report was continuously supplemented and provided to Coleman's original counsel prior to the change of counsel. The trial court overruled Coleman's objection to Dr. Mars' testimony, finding that Lenart should not be penalized because of the change of attorneys. Even if the supplemented report was not provided to either of Coleman's counsel, Coleman cannot demonstrate that the trial court -8- abused its discretion in allowing Dr. Mars' testimony because the supplemented report contains no new findings and issues no new opinions than those already provided in the office notes and reports that were given to Coleman's counsel. There is no surprise or prejudice to Coleman; thus, Coleman's third assignment of error is overruled. IV. For her fourth assignment of error, Coleman argues that the trial court erred when it permitted Lenart's counsel to question a prospective juror as to whether her husband had previously testified as an expert witness for insurance companies. However, Coleman's argument is without merit. The Supreme Court of Ohio, in Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, 535, 200 N.E. 762, held as follows: "It is proper to permit the examination of a prospective juror on his voir dire as to his connection with and interest in a casualty insurance company when conducted in good faith. "In examination of a prospective juror upon his voir dire, in cases involving property damage, personal injury, or both, he may be asked the general question whether he has or has had any connection with or interest in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of his connection with or interest therein." (Internal citations omitted.) -9- Here, it cannot be said that the trial court abused its discretion in permitting Lenart's counsel to question a prospective juror as to her husband's interest, if any, to insurance companies after the prospective juror stated that her husband, a cardiologist, served as an expert witness in prior court matters. Despite Coleman's argument, such question did not prejudice Coleman in this personal injury action and was entirely proper during voir dire. Thus, Coleman's fourth assignment of error is overruled. V. Finally, Coleman's fifth assignment of error asserts that the trial court abused its discretion in granting Lenart's motions for prejudgment and post-judgment interest. However, Coleman 's assertion is without merit. To set forth a claim for prejudgment interest, the following four requirements must be met: "(1) the party seeking prejudgment interest must petition the court by motion within fourteen days after entry of judgment; (2) the trial court must hold a hearing on the motion; (3) before awarding prejudgment interest, the court must find that the party required to pay the judgment failed to make a good faith effort to settle; and (4) the court must find that the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case." Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 657, 1994-Ohio-324, 635 N.E.2d 331. -10- Here, it is undisputed that Lenart moved the trial court for prejudgment interest within 14 days of judgment and that the trial court held a hearing on Lenart's motion. Our review is strictly whether the trial court abused its discretion in finding that Coleman "failed to make a good faith effort to settle." "A party has not 'failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (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 settlement offer." Kalain v. Smith (1986), 25 Ohio St.3d 157, 495 N.E.2d 572, paragraph one of the syllabus. Although Coleman argues that the seven-month gap in medical treatment was the driving force behind its final offer of $4,300, it cannot be said that the trial court erred in finding that Coleman failed to make a good faith effort to settle. First, Lenart claimed over $7,000 in medical expenses and, after Lenart submitted Dr. Mars'expert report as to Lenart's medical treatment, Coleman reduced its initial offer of $2,000 to $1,800. This reduction is without explanation. Second, Coleman 's insurance representative failed to attend a final settlement conference, -11- despite a court's order requiring the insurance representative 's presence. The trial court rescheduled the final pretrial conference, but such failure to attend resulted in an "unnecessary delay of the proceedings." Third, Coleman argues, as part of its own evaluation of her risks, that it retained Dr. Morris to evaluate the report issued by Dr. Mars and make a determination as to Lenart's claimed injuries. While Dr. Morris ' evaluation may have bolstered Coleman's claims that Lenart was "not as injured as he claimed to be" from the motor vehicle accident, Coleman never provided Lenart with a copy of Dr. Morris'report, never called Dr. Morris as a witness at trial, and never attempted to use Dr. Morris'evaluation to negotiate a settlement with Lenart. In fact, the very first time Lenart learned of Dr. Morris was at the hearing on Lenart's motion for prejudgment interest. Finally, Coleman 's final offer of $4,300 - despite testimony from the insurance representative at the hearing that this was a possible "limits" case - was below the over $7,000 in medical expenses and well below the $12,500 liability limits. Based on the foregoing facts elicited at the hearing, the trial court acted within its discretion in finding Coleman failed to make a good faith effort to settle and awarding Lenart -12- prejudgment interest. Thus, Coleman's fifth assignment of error is overruled.1 Judgment affirmed. 1 Although Coleman asserts that the trial court erred in awarding Lenart post-judgment interest, she makes no argument as to why the trial court committed error in her appellate brief. Absent such argument, this court need not address the claimed error. -13- 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE JAMES J. SWEENEY, P.J., and DIANE KARPINSKI, J., CONCUR. 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. 22. 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). .