[Cite as Grange Ins. Co. v. Swearengen, 2021-Ohio-3596.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
GRANGE INSURANCE COMPANY,
Plaintiff-Intervenor-Appellant,
v.
JAMES C. SWEARENGEN, JR., et al., INDIVIDUALLY AND AS
ADMINISTRATOR FOR THE ESTATE OF JAMES SWEARENGEN, AND
CAROLYN SWEARENGEN, DECEASED,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 21 JE 0005
Civil Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 18-CV-490
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed in part. Reversed in part.
Remanded in part.
Atty. James R. Gallagher, Gallagher, Gams, Tallan, Barnes & Littrell, LLP, 471 East
Broad Street 19th Floor, Columbus Ohio 43215-3872, for Intervening Plaintiff-Appellant
Grange Insurance Company
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Atty. Lee E. Plakas, Atty. Megan J. Frantz Oldham, Atty. Maria C. Klutinoty Edwards, and
Atty. Brandon W. McHugh, Plakas Mannos, 220 Market Avenue North, Suite 300, Canton
Ohio 44702, for Defendants-Appellees James C. Swearengen, Jr., Individually and as
Administrator for the Estates of James Swearengen and Carolyn Swearengen,
Deceased.
Dated: September 30, 2021
WAITE, J.
{¶1} Appellant Grange Insurance Company appeals a February 2, 2021
Jefferson County Court of Common Pleas judgment entry which granted summary
judgment in favor of Appellee, James C. Swearengen, Jr., Individually and as
Administrator for the Estate of James Swearengen, Deceased, et al. In this action,
brought to determine the policy limits of a commercial insurance policy, Appellant argues
that the trial court erroneously applied the aggregate policy limit to a single occurrence
instead of the applicable per occurrence limit. Appellant also argues that the court
erroneously required immediate payment before an appeal could be filed and imposed
post-judgment interest in violation of the parties’ settlement agreement. For the reasons
provided, Appellant’s argument regarding post-judgment interest has merit. However,
Appellant’s remaining arguments are without merit. Accordingly, the matter is remanded
for purposes of entering a nunc pro tunc entry to strike post-judgment interest from the
damage award. The judgment of the trial court is affirmed in all other respects.
Factual and Procedural History
{¶2} On November 11, 2016, James and Carolyn Swearengen called Mutton’s
Heating and Cooling (“Mutton’s”) and requested service on their heating system. Mutton’s
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arrived at the Swearengen residence and completed repairs on the boiler. On February
5, 2017, approximately three months later, the Swearengens were found deceased in
their home. The cause of death was determined to be carbon monoxide poisoning.
{¶3} On November 9, 2018, Appellee filed a complaint against Mutton’s, alleging
negligence in failing to inform the Swearengens of the dangerous condition of their boiler
which was described as “ancient.” At the time of the incident, Appellant insured Mutton’s
under a “Contractor and Tradesman Commercial General Liability” policy.
{¶4} On February 6, 2020, the parties reached a settlement agreement.
Appellant agreed to pay Appellee $1,000,000 at the time the probate court approved the
agreement. When the court approved the agreement, Mutton’s would be released from
all claims. However, the parties disagreed about the policy limits, so it was agreed that
Appellant would be allowed to intervene and assert a declaratory judgment action against
Appellee. If the trial court determined that the policy limit was $1,000,000, the parties
agreed that no further payment would be due. However, if the court found the policy limit
was $2,000,000, Appellant was to pay Appellee an additional $800,000 after final
judgment.
{¶5} On June 5, 2020, the probate court approved the agreement. On August
20, 2020, Appellant filed a third-party declaratory judgment action against Appellee. On
November 25, 2020, the parties filed competing motions for summary judgment. On
January 29, 2021, the trial court held a hearing and on February 2, 2021, the court granted
summary judgment in favor of Appellee, finding that the policy provided a $2,000,000
limit. It is from this entry that Appellant timely appeals.
Summary Judgment
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{¶6} An appellate court conducts a de novo review of a trial court's decision to
grant summary judgment, using the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Before summary judgment can be granted, the trial court must determine 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, (3) it appears from the evidence that reasonable
minds can come to but one conclusion, and viewing the evidence most favorably in favor
of the party against whom the motion for summary judgment is made, the conclusion is
adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d
267 (1977). Whether a fact is “material” depends on the substantive law of the claim
being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d
1088 (8th Dist.1995).
{¶7} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264
(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293, 662 N.E.2d 264. In other words, when presented with a properly supported motion
for summary judgment, the nonmoving party must produce some evidence to suggest
that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of
Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
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{¶8} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d
267.
ASSIGNMENT OF ERROR NO. 1
The Trial Court erred in ruling that the $2 million "aggregate" limit of liability
coverage applied to the single "occurrence" giving rise to this litigation. The
policy provides that the $1 million "occurrence" limit is the maximum amount
payable for any single occurrence covered by the Liability coverage portion
of the policy.
{¶9} The primary issue, here, requires this Court to determine the policy limits of
an insurance policy. To obtain a better understanding of the parties’ arguments, a
relevant term used throughout the judgment entry and parties’ briefs will be briefly
addressed. The service Mutton’s provided to the Swearengens falls within a certain type
of risk included within the liability coverage called “Products Completed Operations
Hazard” (“PCOH”). Interpretation of this term and its effect on the policy limit is directly
at issue here. The parties agree that the policy does not provide separate stand-alone
coverage for PCOH claims. However, they disagree as to whether a PCOH claim has its
own separate liability limits. Thus, the narrow issue before us is whether a PCOH claim
Case No. 21 JE 0005
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falls within the policy’s general liability per occurrence limits or in a separate PCOH claim
limit.
{¶10} Appellant explains that Ohio law requires a trial court to examine an
insurance policy as a whole and to give effect to all relevant provisions. Appellant
contends that contrary to this requirement, the trial court expressly refused to look beyond
the declaration page in interpreting the policy limits. Appellant explains that the
declarations page directs the reader to “refer to SECTION II, D. Liability and Medical
Expenses Limits of Insurance” to determine the policy limits. Section II, D. provides that
Appellant will “pay for ‘Bodily Injury’ and ‘Medical Expenses’ found in the “Liability and
Medical Expenses limit shown in the Declarations.” (Appellant’s Brf., p. 2.) Appellant
argues that the “Bodily Injury and Medical Expense” section of the policy provides a “per
occurrence” limit of $1,000,000 and is the default limit for any single occurrence covered
by the policy, including PCOH claims. Because the claim at issue involved one, single
occurrence, Appellant argues that the applicable policy limit is $1,000,000.
{¶11} Appellee responds that the declaration page specifically includes a line
describing the liability limits for PCOH claims. This language provides an aggregate limit
of $2,000,000. However, unlike the policy language entitled “Liability Limit,” the PCOH
language does not refer to any per occurrence limit, and contains only an aggregate limit.
Because the PCOH language does not provide an occurrence limit, Appellee argues that
those claims are subject only to a $2,000,000 aggregate limit and that they have no per
occurrence limit.
{¶12} The Ohio Supreme Court has described the analysis a reviewing court
conducts in a matter involving the interpretation of an insurance policy:
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When confronted with an issue of contractual interpretation, the role of a
court is to give effect to the intent of the parties to the agreement. Hamilton
Ins. Serv., Inc. v. Nationwide Ins. Cos. (1999), 86 Ohio St.3d 270, 273, 714
N.E.2d 898, citing Employers’ Liab. Assur. Corp. v. Roehm (1919), 99 Ohio
St. 343, 124 N.E. 223, syllabus. See, also, Section 28, Article II, Ohio
Constitution. We examine the insurance contract as a whole and presume
that the intent of the parties is reflected in the language used in the policy.
Kelly v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130, 31 OBR 289, 509
N.E.2d 411, paragraph one of the syllabus. We look to the plain and
ordinary meaning of the language used in the policy unless another
meaning is clearly apparent from the contents of the policy. Alexander v.
Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374
N.E.2d 146, paragraph two of the syllabus. When the language of a written
contract is clear, a court may look no further than the writing itself to find the
intent of the parties. Id. As a matter of law, a contract is unambiguous if it
can be given a definite legal meaning. Gulf Ins. Co. v. Burns Motors, Inc.
(Tex.2000), 22 S.W.3d 417, 423.
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256,
¶ 11.
{¶13} For ease of understanding, the relevant section of the declaration page
reads as follows:
Coverages Limits of Insurance
Liability Limit $1,000,000 each occurrence
Case No. 21 JE 0005
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$2,000,000 aggregate
Products/Completed Operations (PCOH) $2,000,000 aggregate
Personal & Advertising Injury Included in Policy
Medical Expenses $5,000 per person
Damage To Premises Rented to You $100,000
Any one fire or explosion
(12/15/20 Notice of Filing Insurance Policy, p. 6.)
{¶14} Despite Appellant’s arguments, Appellee does not argue that the policy
provides PCOH claims with stand-alone coverage. Instead, Appellee argues that the
policy provides separate liability limits for PCOH claims based on the above cited
language of the Declaration page. Appellee also does not argue that the incident at issue
involves more than a single occurrence. Appellee’s contention is that the policy provides
no per occurrence limit for PCOH liability. Instead, it is subject only to the aggregate limit.
{¶15} In a detailed judgment entry, the trial court agreed with Appellee and
determined that, unlike the “Liability Limit,” PCOH claims are subject to only an aggregate
limit. The court acknowledged that Section II D states that: “[t]he most we will pay for the
sum of all damages because of all: a. Bodily injury’, ‘property damage’ and medical
expenses arising out of any one ‘occurrence’…” (2/2/21 J.E.) However, the court
explained that this would only have been relevant if the PCOH line included a “per
occurrence” limit, which it does not. The court further explained that the absence of any
per occurrence limit is glaring, as the general liability limit expressly contains a per
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occurrence limit. In other words, if the parties intended the policy to include a per
occurrence limit for a PCOH claim, they would have expressly done so and have worded
the liability limitations identically with the general liability limit line. The court noted that
the “medical” limit also did not include a per occurrence limit. Contrary to Appellant’s
contentions, then, it is readily apparent the trial court in the instant matter did not limit its
analysis solely to the declarations page. The court clearly considered the declarations
alongside Section D, as expressly explained in the court’s judgment entry.
{¶16} We must also begin our analysis with the declarations page. Appellant, as
drafter of the policy, chose not to treat all claims under the policy the same. Instead,
Appellant created two groups: general liability claims and PCOH claims. This is clear
from the subsections shown on the declarations page which are titled “Liability Limit” and
“Products/Completed Operations (PCOH).” The “Liability Limit” established two types of
policy limits: per occurrence and in the aggregate. At first blush, it appears that every
type of liability covered under the policy should be subject to these limits. However, these
limits are further explained by the next lines of the declaration, which set other, separate
limits for certain other types of liability. Instead of leaving PCOH claims contained within
these general liability limits, PCOH claims are “carved out” of the other types of liability
and given their own separate line on the declarations, with their own separate limits of
liability: “$2,000,000 aggregate.” Based on this section, alone, it appears that Appellant
chose to exclude a per occurrence limit for PCOH claims and instead, provide only an
aggregate liability limit.
{¶17} Appellant could easily have added a per occurrence limit to the declaration
language regarding PCOH claims but did not. Appellant could have chosen not to
Case No. 21 JE 0005
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separately address PCOH claims, thus including these claims within the general limits of
liability. Appellant argues that the default for all per occurrence claims is the general
liability limit of $1,000,000. However, if this were true, there would have been no need to
create a PCOH category on the declarations page. In order to determine whether there
is any validity to Appellant’s additional argument or whether the declaration language is
merely an oversight, however, we must now turn to the policy as a whole where there
may be other provisions interpreting the omission of the per occurrence language in
support of Appellant’s contentions.
{¶18} The parties direct us to Section D, which is titled: “Liability And Medical
Expenses Limits of Insurance.” Appellant focuses its argument on Section D, 2 which
addresses per occurrence limits:
D. Liability and Medical Expenses Limits of Insurance
1. The Limits of Insurance of Section II – Liability shown in the Declarations
and the rules below fix the most we will pay regardless of the number of:
a. Insureds;
b. Clams made or “suits” brought, or
c. Persons or organizations making claims or bringing “suits”.
2. The most we will pay for the sum of all damages because of all damages
because of all:
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(a) “Bodily injury”, “property damage” and medical expenses arising out of
any one occurrence”, and
(b) “Personal and advertising injury” sustained by any one person or
organization;
is the Liability and Medical Expenses Limit shown in the Declarations. But
the most we will pay for all medical expenses because of “bodily injury”
sustained by any one person is the Medical Expenses Limit shown in the
Declarations.
(12/15/20 Notice of Filing Insurance Policy, p. 41.)
{¶19} Appellant argues that this section, which describes the “per occurrence
limits,” provides that all single occurrences fall within the general liability limits regardless
of the type of claim. However, Appellant ignores Section D, 4 which also must be read in
conjunction with Section D, 2. Section D, 4 describes the aggregate limits.
{¶20} While neither party addressed Section D, 4 in their briefs, both addressed
the subsection at oral argument.
4. Aggregate Limits.
The most we will pay for:
a. All “bodily injury” and “property damage” that is included in the “products-
completed operations hazard” is twice the Liability and Medical Expenses
limit.
Case No. 21 JE 0005
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b. All:
(1) “Bodily injury” and “property damage” except damages because of
“bodily injury” or “property damage” included in the “products-completed
operations hazard”;
(2) Plus medical expenses;
(3) Plus all “personal and advertising injury” caused by the offenses
committed;
is twice the Liability and Medical Expenses limit.
(12/15/20 Notice of Filing Insurance Policy, p. 42.)
{¶21} The policy, drafted by Appellant, provides in general terms for “per
occurrence” limits of liability. This section does not specifically address PCOH claims.
Within Section D, 4, however, general liability and PCOH claims are discussed separately
as they are addressed on the declarations page. This section provides “twice the Liability
and Medical Expenses limit” for “bodily injury” and “property damage” arising out of PCOH
claims. This section then discusses the same categories of liability discussed in D, 2’s
“per occurrence” language and provides a $2,000,000 aggregate limit for claims arising
out of “bodily injury,” “property damage,” medical expenses, and “personal and
advertising injury” expenses. Thus, the policy treats general liability claims and PCOH
claims separately in regard to liability limits in both the declarations and within Section D.
Failure to mention PCOH claims in D, 2, the section directly addressing per occurrence
limitations, appears to buttress Appellee’s argument that the parties intended these
Case No. 21 JE 0005
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claims were subject only to one, aggregate limit. There is absolutely no language in this
contract specifically limiting PCOH claims with any “per occurrence” limits.
{¶22} Both parties cite to D.I.C.E., Inc. v. State Farm Ins. Co., 6th Dist. Lucas No.
L-11-1006, 2012-Ohio-1563. In D.I.C.E., the use of a hydraulic lift caused significant
injury to a person and gave rise to a PCOH claim. The issue was whether a PCOH claim
gave rise to a stand-alone claim. The D.I.C.E. court held that the policy did not include
an independent provision defining and providing coverage of PCOH claims. The D.I.C.E.
court did not address liability limits, and does not provide guidance, here.
{¶23} Both parties also cite to Burdette v. Bell, 2019-Ohio-5035, 137 N.E.3d 1236
(12th Dist.). In Bell, an employee of a restaurant struck and injured a pedestrian while
delivering a pizza. One issue turned on whether the policy provided stand-alone
coverage for a PCOH claim or merely established separate liability limits. The policy
language is similar to the one at issue, here, and is provided below.
The term PCOH is discussed in three places in the policy, the declarations
page, the limits of insurance provision in Section II, and the definitions
provision in Section II. The declarations page states that under Section II –
LIABILITY, two separate categories of Limit of Insurance are provided, one
for COVERAGE, consisting of Coverage L, Coverage M, and Damages to
Premises Rented To You, and one for AGGREGATE LIMITS, consisting of
"Products/Completed Operations Aggregate" and "General Aggregate."
The limits of insurance provision of Section II provides in relevant part that
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(1) The Limits of Insurance of SECTION II – LIABILITY shown in the
Declarations and the rules below fix the most we will pay * * * .
(2) The most we will pay for * * * "bodily injury," "property damage" and
medical expenses arising out of any one "occurrence" * * * is the Coverage
L – Business Liability shown in the Declarations[.]
(3) * * *
(4) Aggregate Limits
The most we will pay for:
(a) All "bodily injury" and "property damage" that is included in the [PCOH]
is the Products and Completed Operations Aggregate limit shown in the
Declarations.
(b) All:
(1) "Bodily injury" and "property damage" except damages because of
"bodily injury" or "property damage" included in the [PCOH];
(2) * * *
(3) * * *
is the General Aggregate limit shown in the Declarations.
Id. at ¶ 22-23.
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{¶24} Based on this language, the Bell court found that the policy created
separate liability limits for PCOH claims, not stand-alone coverage. Id. at ¶ 29. We note
that the policy, as quoted by the court, included only an aggregate limit for PCOH claims.
While the Bell court resolved a different issue than the one before us, the court appears
to have interpreted a declarations page with the same general liability and PCOH limits
and determined that PCOH claims gave rise to separate liability limits. Specifically, the
court held: “the fact that the declarations page and the limits of insurance provision both
designate a separate limit of liability for PCOH does not lead to the conclusion that PCOH
provides a separate coverage. A different limit of liability for PCOH is just that, a different
applicable limit, not a separate form of coverage.” Id. at ¶ 28. The Bell policy language
cited above almost mirrors the language in the instant case.
{¶25} Appellant’s policy language clearly treats general liability claims and PCOH
claims differently for purposes of liability limits. If Appellant’s argument were accepted,
the inclusion of a separate line for PCOH aggregate limits on the declarations page was
unnecessary. Appellant has provided no explanation as to why this section did not include
language anywhere addressing a per occurrence limit for PCOH claims if that was the
intent of the policy. This is underscored in Section D, which also treats general liability
and PCOH claims differently for purposes of liability limits. In reading the contract as a
whole, while PCOH claims do not have separate stand-alone coverage, these claims are
subject to separate liability limits similar to those in Bell.
{¶26} While Appellant now argues that the contract language intended a different
result, Appellant drafted the policy at issue. Based on the clear, unambiguous language
found within the policy, PCOH claims are subject to only an aggregate limit of $2,000,000.
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Because we find the language regarding policy limits to be unambiguous, we need not
look further. Accordingly, Appellant’s first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
The Trial Court erred in issuing a judgment against grange [sic] for $800,000
and for ordering post judgment interest to be paid by grange [sic].
{¶27} Appellant argues that the trial court erroneously awarded Appellee
monetary damages where the complaint did not request such damages. Appellant also
argues that the court erroneously required immediate payments, because the settlement
agreement contained a condition precedent allowing the parties an opportunity to exhaust
the appellate process before an obligation to pay the additional $800,000 arose.
Additionally, Appellant contends that the court erroneously imposed post-judgment
interest, as the parties specifically removed post-judgment interest from the settlement
agreement during negotiations.
{¶28} Appellee replies that the complaint sought a remedy, to include court costs
and all relief deemed just and equitable. Appellee argues that monetary damages fall
within the latter category. As to post-judgment interest, Appellee correctly explains that
the parties’ negotiations are not part of the appellate record. Even so, the settlement
agreement included a merger clause providing that all negotiations were superseded by
the settlement agreement itself, and that agreement does not address post-judgment
interest. As to the condition precedent, Appellee notes that the $800,000 at issue was
required to be paid after final judgment was entered. As the trial court’s judgment was
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final, payment became due. Appellee explains that the settlement agreement relieved
Appellant only of the requirement to post a supersedeas bond.
{¶29} In its judgment entry, the trial court granted the following relief: “[f]or all of
the reasons set forth above the Court finds that the Mutton policy had a single aggregate
limit of $2,000,000 for [PCOH claims] and that pursuant to the Swearengen-Mutton-
Grange settlement, Grange owes Swearengen an additional $800,000 for which judgment
is granted, plus costs of this action and post-judgment interest.” (J.E.)
{¶30} Contrary to Appellant’s argument, the $800,000 awarded by the trial court
does not represent an additional monetary damage. This amount is the remaining money
due under the settlement agreement. The agreement provided for an immediate payment
of $1,000,000 at the time the probate court accepted the agreement. The remaining
$800,000 was not due until and unless the court determined that the policy limit was
$2,000,000. In other words, the additional $800,000 was due only if the policy limits
exceeded the original $1,000,000 payment. Once the trial court determined that the
policy limit was $2,000,000, this triggered the additional $800,000 payment as per the
settlement agreement. Had the trial court found the opposite, no additional money was
owed.
{¶31} Appellant contends the court erroneously required immediate payment of
the $800,000 before an appeal could be taken. The payment due dates are addressed
in the settlement agreement. The relevant clause states:
In the event there is a final judgment that Two Million Dollars
($2,000,000.00) of coverage is available, within fourteen (14) days of
Probate Court approval, if further Probate court approval is required, or
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within thirty-five days of the entry of final judgment, including final
judgment after any appeals, if Probate court approval is not required,
[Appellant] will pay an additional Eight Hundred Thousand Dollars
($800,000) to Swearengen * * * (Emphasis added.)
(8/20/20 Intervening Complaint, Exh. A.)
{¶32} It is unclear whether Appellant has paid the additional $800,000 or whether
payment is being withheld until the completion of the appellate process. The record
contains no evidence of completed payment. Contrary to Appellant’s assertion, it does
not appear from the court’s judgment entry that payment was immediately due before an
appeal could be taken. To the extent that Appellant paid the $800,000 before appealing
under an erroneous belief that the court required immediate payment, the settlement
agreement expressly provides that it was not due until thirty-five days after final judgment
“including final judgment after any appeals.” (Emphasis added.) (8/20/20 Intervening
Complaint, Exh. A.) Thus, Appellant is not required to pay the $800,000 until after the
appeals process is exhausted. Again, we must note that the trial court did not order
immediate payment.
{¶33} Regarding post-judgment interest, the parties have competing views on
whether this was addressed in the settlement agreement. Appellant argues that the
settlement agreement initially provided for post-judgment interest, however, that was
removed during the parties’ negotiations. Appellee responds by arguing that the parties’
negotiations are not within the appellate record and are preempted by a merger clause.
{¶34} A merger clause provides that “a written contract which appears to be
complete and unambiguous on its face will be presumed to embody the final and complete
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expression of the parties' agreement.” P.J. Lindy & Co. v. Savage, 6th Dist. Erie No. E-
18-028, 2019-Ohio-736, ¶ 25, appeal not allowed, 156 Ohio St.3d 1445, 2019-Ohio-2498,
125 N.E.3d 928, citing Fontbank, Inc. v. CompuServe, Inc., 138 Ohio App.3d 801, 808,
742 N.E.2d 674 (10th Dist.2000).
{¶35} The merger clause in the instant settlement agreement provided:
This Agreement constitutes the entire agreement and supersedes any and
all other understandings and agreements between the Parties with respect
to the settlement of the Litigation and no representation, statement or
promise not contained herein shall be binding on either party. This
Agreement may be modified only by a written amendment duly signed by
each Party.
(8/20/20 Intervening Complaint, Exh. A., Paragraph 15.)
{¶36} Thus, to the extent Appellant attempts to introduce extrinsic evidence from
the parties’ negotiations, the merger clause prohibits such evidence. However, another
clause in the agreement is relevant. Paragraph eight of the settlement agreement
provides:
With the exception of the agreement to pay the amount of One Million
Dollars ($1,000,000) referenced in Paragraph 3 of this Agreement and, if
Swearengen prevails in the Declaratory Judgment Action, the additional
Eight Hundred Thousand Dollars ($800,000) referenced in Paragraph 7 of
this Agreement, Swearengen will not seek to recover any additional
damages for the claims asserted, or which could have been asserted, in
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the Litigation from Mutton, [Appellant], or any other person, firm, or entity.
(Emphasis added.)
(Complaint, Exh. A.)
{¶37} R.C. 1343.03(A) provides that:
In cases other than those provided for in sections 1343.01 and 1343.02 of
the Revised Code, when money becomes due and payable upon any bond,
bill, note, or other instrument of writing, upon any book account, upon any
settlement between parties, upon all verbal contracts entered into, 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 the rate per annum determined pursuant
to section 5703.47 of the Revised Code, unless a written contract provides
a different rate of interest in relation to the money that becomes due and
payable, in which case the creditor is entitled to interest at the rate provided
in that contract.
{¶38} “Under the statute, absent an agreement to the contrary, postjudgment
interest is payable to appellee as a matter of law.” Licking Hts. Local School Dist. Bd. of
Edn. v. Reynoldsburg City School Dist. Bd. of Edn., 2013-Ohio-3211, 996 N.E.2d 1025,
¶ 30 (10th Dist.). While the parties claim that any reference to post-judgment interest was
removed from the agreement, the parties clearly agreed that Appellee would not seek
additional damages beyond the $1,800,000 in the settlement agreement. The question
becomes whether post-judgment interest is a form of damages.
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{¶39} Research does not reveal any law, either statutory or caselaw, that
addresses this issue. However, the Ohio Supreme Court has provided some general
guidance in Parker v. I&F Insulation Co., 89 Ohio St.3d 261, 730 N.E.2d 972, 978 (2000).
In Parker, the court reviewed whether a party entitled to attorney fees could receive post-
judgment interest on that award in addition to the damage award. While this issue is
readily distinguishable from the instant matter, the Parker Court’s rationale provides some
guidance. The Court limited its holding to attorney fees in CSPA cases, but the court
cited to caselaw stating that “post-judgment interest is ‘a form of compensating for the
period that the [prevailing party] remains ‘less than whole.’ ” Id. at 367, citing Isaacson
Structural Steel Co. v. Armco Steel Corp. (Alaska 1982), 640 P.2d 812, 818. Applying
that principal, because post-judgment interest is a way of making the injured party
“whole,” it appears to be part and parcel with a damage award.
{¶40} Regardless, it is readily apparent that the parties’ intended to limit the award
to the $1,800,000 settlement agreement, alone. This can be inferred from the parties’
use of language to prohibit “any additional damages” for claims asserted or “which could
have been asserted.” (Emphasis added.) (Complaint, Exh. A.) Further, as we have
earlier discussed, payment of the additional $800,000 was not due until exhaustion of the
appellate process. Hence, there appears to be no award on which the trial court could
grant interest.
{¶41} Accordingly, Appellant’s second assignment of error has merit in part. The
trial court erred in awarding post-judgment interest in this matter.
Conclusion
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{¶42} Appellant argues that the insurance policy in effect at the time of the incident
had a policy limit of $1,000,000 for a single occurrence no matter on what basis a claim
is made. Appellant contends that the trial court erred in relying on language pertaining to
an aggregate limit when it determined that the applicable policy limit was $2,000,000.
Appellant also argues that the trial court erroneously required immediate payment before
an appeal could be filed and imposed post-judgment interest in violation of the parties’
settlement agreement. For the reasons provided, Appellant’s argument regarding post-
judgment interest has merit. However, Appellant’s remaining arguments are without
merit. Accordingly, the matter is remanded for purposes of entering a nunc pro tunc entry
to strike post-judgment interest from the damage award. The judgment of the trial court
is affirmed as to all other respects.
Donofrio, P.J., concurs.
D’Apolito, J., concurs.
Case No. 21 JE 0005
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For the reasons stated in the Opinion rendered herein, Appellant’s first assignment
of error is overruled and its second assignment is sustained in part. It is the final judgment
and order of this Court that the judgment of the Court of Common Pleas of Jefferson
County, Ohio, is affirmed in part and reversed in part. We hereby remand this matter to
the trial court for further proceedings according to law and consistent with this Court’s
Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 JE 0005