Moore v. General Motors Corp.

Holmes, J.,

dissenting. I dissent from the majority’s extremely liberal interpretation of R.C. 4123.519. In my view, “cost of the deposition” within the context of the statute includes only stenographic and reproduction costs, not a physician’s fee therefor. This court should not, under the guise of “liberal construction,” read something into a statute which cannot reasonably be implied from the language of such statute. Szekely v. *263Young (1963), 174 Ohio St. 213 [22 O.O. 214], See, also, Phillips v. Borg-Warner Corp. (1972), 32 Ohio St. 2d 266 [61 O.O.2d 493].

The phrase “cost of the deposition” is not to be equated to costs associated with an expert’s fee for testifying. The General Assembly was patently aware of the term “fee” as evidenced by the use of the term within R.C. 4123.519 which allows a successful claimant an award for attorney fees. However, a similar reference to “fee” was not utilized by the General Assembly in permitting recovery for the cost of depositions. The statute merely reads “cost.”

This court has traditionally had a well-settled policy of not confusing the terms “fees” and “costs.” For instance, in Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St. 2d 50 [23 O.O.3d 88], the “fee” for a supersedeas bond was denied as a recoverable “cost” because this court refused to equate the two terms. We stated:

“This court has consistently limited the categories of expenses which qualify as ‘costs.’ ‘Costs, in the sense the word is generally used ih this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action * * * and which the statutes authorize to be taxed and included in the judgment. Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements.’ * * *” Id. at 50-51, quoting State, ex rel. Commrs. of Franklin County, v. Guilbert (1907), 77 Ohio St. 333, at 338-339. See, also, State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599 [60 O.O. 530].

Finally, it should be noted that I am in complete agreement with the Franklin County Court of Appeals’ interpretation of R.C. 4123.519 set forth in Perry v. Connor (1983), 8 Ohio App. 3d 283. The court stated at 284:

“Reading the provision in its full context, it is clear that the ‘cost of the deposition’ is intended to include only the stenographic costs, which include the cost of the court reporter attending the deposition and the fee for producing the original and copies that are required, but that it is not intended to include the cost of the physician’s fee. To encourage the production of testimony by deposition, R.C. 4123.519 is calculated to relieve claimant from additional charges that are required when testimony is presented by deposition, rather than by a witness in court. Hence, the term ‘cost of the deposition’ is properly interpreted to mean only costs which are added because a deposition is used. * * *”

Accordingly, I would reverse the judgment of the court of appeals herein.

Wright, J., concurs in the foregoing dissenting opinion.