concurring in part and dissenting in part.
{¶ 31} I respectfully concur in part and dissent in part from the majority opinion.
{¶ 32} I am mindful of our standard of review and hesitate to disturb the trial court’s finding in this case. I believe that the analysis of the trial court is correct in that consideration of proximate cause is separate and distinct from the issue of negligence. However, the trial court’s reliance on Stephenson v. R & R Sanitation, Inc., 11th Dist. No. 2002-P-0040, 2003-Ohio-5426, 2003 WL 22326954, is misplaced. In Stephenson, the trial court found a legitimate issue over whether the negligence of a truck driver, by illegally parking his truck, contributed to his own injuries. Id. The court in Stephenson determined that the defendantappellee did not lack good faith in failing to make a settlement offer, as there was an issue of proximate cause throughout the litigation. Id. at ¶ 29. The court stated:
{¶ 33} “The issue of proximate cause was indubitably pivotal to the outcome of the instant case. Insofar as both parties to the lawsuit were ostensibly negligent, the jury’s determination as to which party proximately caused the harm was instrumental in assessing liability. Thus, before the jury’s verdict was announced, the question of proximate cause was a legitimate subject of debate between both parties to the suit. As such, the causal link between the accident in question and appellant’s injuries was not so obvious as to render appellee’s insurance adjuster’s decision not to settle unreasonable.” Id. at ¶ 24.
{¶ 34} In the instant case, there is no such issue. While it is correct that proximate cause was a concern, it did not relate in any way to the plaintiff. The issue regarding proximate cause was solely related to defendants. The assessment of plaintiffs fault in this case by all parties was zero percent; plaintiff was going to receive 100 percent of the value of the claim.
{¶ 35} The evidence submitted in support of the request for prejudgment interest was clear and virtually undisputed. Three defendants were involved in this matter, as well as three insurance carriers. All insurance carriers agreed that plaintiff was entitled to substantial damages. Their assessment of the value *685of the claim ranged from (1) $150,000 to $200,000 (Nationwide); (2) $175,000 to $225,000 (State Farm); and (3) $200,000 to $250,000 (Farmers). Therefore, by the companies’ own analyses, plaintiff was going to receive between $150,000 and $250,000 if the casé went to trial, as there were no issues of contributory or comparative negligence by plaintiff. In fact, the jury awarded plaintiff over $230,000, just as predicted.
{¶ 36} Prior to trial, the parties ended negotiations with plaintiff at $200,000 and the defendants collectively at $120,000. The meaning of this is clear. Defendants, who were collectively 100 percent responsible for plaintiffs damages, never offered more than 80 percent of the lowest value of the claim. At a minimum, the final offer should have equaled $150,000. The failure to collectively offer this amount, an amount that they all acknowledged plaintiff was going to receive, amounted to a lack of good faith.
{¶ 37} The collective defendants profess that this is acceptable, as they could not determine among themselves who was more at fault. However, it is important to note that they all acknowledged some fault, and because of the potential for payment of the entire claim upon a finding of any fault, they cannot simply point their fingers at each other. It is an obvious lack of good faith to collectively fail to make an offer commensurate with an agreed amount due to plaintiff. The failure to make such an offer, in essence, required plaintiff to proceed to trial. If the defendants require a plaintiff to proceed to trial because the defendants cannot determine who owes the money, the purpose and intent of the prejudgment-interest statute is defeated.
{¶ 38} The date of the accident predated the amendment to the current joint- and-several-liability statute. As a result, if any of the defendants were found to be as little as 1 percent at fault, they could be liable for the entire amount of the claim, with a right of contribution from other tortfeasors. See former R.C. 2307.32. With regard to the percentage of fault among the tortfeasors, State Farm always acknowledged some fault on the part of its driver. The other carriers initially denied any wrongdoing; however, Nationwide recognized by March 3, 2004, that “a jury could find anywhere from 5-15% liability on each of the [bicyclists].” The adjuster from Farmers testified in his deposition that he had also placed this figure on each of the bicyclists. This uncontroverted evidence and the verdict of the jury belie the trial court’s second alternative argument described in its entry, i.e., that only the driver was liable, as she was both negligent and the sole proximate cause of the accident. While it may be appropriate to advance such an argument at trial, it is not what the adjusters’ internal assessment concluded, and therefore, it should have been recognized in settlement discussions.
*686{¶ 39} The trial court correctly observed the issue whether Nationwide and Farmers took a reasonable position that only the driver was the proximate cause of the accident. I believe, however, that the adjusters’ files, the adjusters’ testimony, and the finding of the jury suggest they did not. As previously noted, both the Nationwide and Farmers adjusters testified in deposition that they had assessed that the jury could find anywhere from 5 to 15 percent fault on both bicyclists. The jury’s finding that the two bicyclists were 95 percent responsible for the accident strongly suggests that an assessment of 0 percent fault was unreasonable and not made in good faith.
{¶ 40} Primarily because they were all potentially liable under the old law, defendants collectively should have at least offered the minimum amount they all agreed was due to plaintiff. If this resulted in a settlement with plaintiff, defendants could proceed to resolve their cross-claims in court or interagency arbitration. I would affirm the trial court’s ruling with regard to State Farm. State Farm offered, at some point, an amount greater than what its insured was ultimately obligated to pay. However, I would reverse and award prejudgment interest due to the lack of good faith by Nationwide and Farmers.