Jontony v. Colegrove

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 8th District Court of Appeals » 2012 » Jontony v. Colegrove

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5846

Case Date: 12/10/2012

Plaintiff: Jontony

Defendant: Colegrove

Preview:[Cite as Jontony v. Colegrove, 2012-Ohio-5846.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No.                                                   98295
HENRY JONTONY, ET AL.
PLAINTIFFS-APPELLEES/
CROSS-APPELLANTS
vs.
LEE J. COLEGROVE, ET AL.
DEFENDANT
[APPEAL BY CITY OF STRONGSVILLE]
DEFENDANT-APPELLANT/
CROSS-APPELLEE
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No.   CV-677987
BEFORE:   Keough, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED:   December 10, 2012

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE
Christina J. Marshall
Brian Dodez
James M. Popson
Sutter, O’Connell & Farchione Co., LPA
3600 Erieview Tower
1301 East 9th Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS
Mark J. Obral
Thomas J. Silk
Alexander L. Pal
Obral, Silk & Associates
1370 Ontario Street
1520 Standard Building
Cleveland, OH 44113

KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant/cross-appellee, city of Strongsville (“the City”), appeals
various  rulings  made  by  the  trial  court  during  the  course  of  litigation  with
plaintiffs-appellees/cross-appellants, Henry Jontony, Patricia Jontony, Dominic Jontony,
and  Kara  Jontony  (collectively  the                                                           “Jontonys”).    The  Jontonys  filed  a  cross-appeal
challenging the trial court’s decision denying prejudgment interest.   For the reasons that
follow, we affirm in part, reverse in part, and remand.
{¶2} This case arises from a traffic accident involving Henry Jontony and city of
Strongsville police sergeant, Lee Colegrove.   It is undisputed that Colegrove, while on
duty, turned in front of Mr. Jontony’s vehicle, causing Mr. Jontony’s vehicle to strike
Colegrove’s SUV police cruiser.   It is also undisputed that Colegrove was operating his
police cruiser without the use of his police lights and sirens.   As a result of the accident,
it is alleged that Mr. Jontony suffered serious brain injury.
{¶3} On December 3, 2009, the Jontonys filed an action against Colegrove and the
city of Strongsville alleging negligence.   On January 7, 2009, the city of Strongsville and
Colegrove  jointly  filed  an  answer  generically  denying  various  allegations  in  the
complaint, and asserting several affirmative defenses.   Specifically for Colegrove, the
defense of immunity pursuant to R.C. Chapter 2744 was asserted, whereas the affirmative
defense of immunity was not asserted on behalf of the City.
{¶4}  On  the  same  day that  the  joint  answer  was  filed, Colegrove moved for

judgment on the pleadings, contending he was immune from liability pursuant to R.C.
2744.03(A)(6).   The motion concluded that “* * * Defendant Colegrove is entitled to
judgment as a matter of law and the lawsuit should proceed against remaining Defendant
City of Strongsville.”   Thereafter, the Jontonys voluntarily dismissed Colegrove from the
lawsuit and proceeded solely against the City.
{¶5} The record reflects that discovery was ongoing, primarily on the issue of
damages.   On May 22, 2009, the Jontonys deposed Colegrove who testified that at the
time of the accident he was not responding to an emergency call.   In June, counsel for the
Jontonys and the City exchanged correspondences regarding the issue of immunity, where
the City (1) admitted negligence, (2) assumed “100% responsibility for the accident,” and
(3) identified the only remaining issues in the case to be damages and setoffs.
{¶6} With the issue of proving liability removed from the case, the matter was
scheduled for trial to commence on September 28, 2009.   Less than seven weeks before
trial, the City attempted to raise the affirmative defense of immunity, which the City
initially agreed had no application to the case.   On August 11, 2009, the City filed its
instanter motion for leave to file summary judgment asserting that it is was entitled to
judgment  as  a  matter  of  law  because  the  City  is  immune  from  liability  under  the
“emergency call” doctrine.   On August 31, the trial court in denying the City’s instanter
motion,  stated                                                                                 “Defendant  failed  to  raise  immunity  on  behalf  of  defendant  City  of
Strongsville as an affirmative defense in its answer and has thus waived the defense.”
Additionally, on August 31, the trial court rescheduled the trial to December 28, 2009,

and new counsel for the City entered an appearance on the record.
{¶7} Three months later on November 20, 2009, the City requested leave to file its
amended answer to assert the affirmative defense of governmental immunity.   The trial
court allowed both sides ample opportunity to present its arguments for and against the
motion to amend.   In January 2010, the trial court denied the City’s request for leave to
file its answer, specifically finding:
Defendant  City of  Strongsville’s  motion  for  leave  to  amend  answer  is
denied.   Pursuant to Civil Rule 15(A), amendments to pleadings shall be
freely granted when justice so requires; however, leave is denied if there is
a showing of bad faith, undue delay, or undue prejudice to the opposing
party.    Hoover v. Sumlin  (1984),  12 Ohio St.3d  1.    Defendant assured
plaintiff that “the City of Strongsville does not intend to assert an immunity
defense because Officer Colegrove was not on an ‘emergency call’ as that
phrase has been defined by R.C. § 2744(B)(1) and the case law interpreting
the same.”   This assurance was made on or about June 22, 2009. Allowing
defendant to amend its answer would be prejudicial.   All dates remain as
previously set.
{¶8} The matter ultimately proceeded to a jury trial on the issue of damages, and
the jury awarded a total judgment to the Jontonys in the amount of $1,106,608.87.   After
applying statutory set-offs and caps, the trial court entered a final judgment in favor of the
Jontonys in the amount of  $796,891.07; however, it denied the Jontonys’ request for

prejudgment interest.
I.   Amended Answer
{¶9} In its first assignment of error, the City contends that the trial court abused its
discretion in denying its motion for leave to amend its answer to assert the defense of
immunity.
{¶10} Civ.R. 8(C) requires that in a responsive pleading, a party must “set forth
affirmatively * * * any other matter constituting an avoidance or affirmative defense.”
Accordingly, the affirmative defense of political subdivision immunity is required to be
asserted in a responsive pleading.   Spence v. Liberty Twp. Trustees, 109 Ohio App.3d
357,                                                                                           360,   672  N.E.2d   213   (4th  Dist.1996).     Although  failure  to  adhere  to  this
requirement exposes the party to forfeiture of the defense,  “[i]n the real world  *  *  *
failure to plead an affirmative defense will rarely result in [forfeiture]” because of the
protection of Civ.R.  15(A).    Hoover v. Sumlin,  12 Ohio St.3d  1,  5,  465 N.E.2d  377
(1984), quoting Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 736 (N.D.Ill. 1982)
{¶11} Civ.R. 15(A) allows for amendment of pleadings by leave of court or by
written consent of the other party after a responsive pleading has been made.   As the trial
court noted, Civ.R. 15(A) expressly provides that “[l]eave of court shall be freely given
when justice so requires.”
{¶12} An appellate court applies an abuse of discretion standard of review to a
trial court’s decision to grant or deny a party leave to amend a pleading. Wilmington Steel
Prods. Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991).

“This court’s role is to determine whether the trial judge’s decision was an abuse of
discretion, not whether it was the same decision we might have made.”   Id.   An abuse of
discretion connotes more than an error of law or of judgment; it implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable.   Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983), citing State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶13}  This  court  has  previously  acknowledged  that  the  abuse  of  discretion
standard is a very high standard and “‘evidences not the exercise of will but perversity of
will, not the exercise of judgment but defiance thereof * * *.’”   Aponte v. Aponte, 8th
Dist. Nos. 77394 and 78090, 2001 Ohio App. LEXIS 529 (Feb. 15, 2001), quoting State
v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984).
{¶14} Although the grant or denial of a leave to amend a pleading is within the
sound discretion of the trial court, this discretion is not unfettered.                          “A motion for leave
to amend should be granted absent a finding of bad faith, undue delay or undue prejudice
to the opposing party.”   Hoover at 6.
{¶15} In this case, the trial court determined that allowing the City leave to amend
its answer would be prejudicial to the Jontonys; thus, it denied the City leave.   The trial
court based its decision, in part, on the assertion contained in the June 22, 2009 letter that
the City was not pursuing an immunity defense in this case.
This letter will confirm that the City of Strongsville does not intend to
assert  an  immunity  defense  because  Officer  Colegrove  was  not  on  an
“emergency  call”  as  that  phrase  has  been  defined  by  R.C.                                [Section]
2744.02(B)(1) and the case law interpreting the same.

Additionally, as Officer Colegrove did during this deposition, the City is
admitting he was negligent.   Additionally, I do not see any colorable basis
for  asserting  comparative  negligence  or  assumption  of  the  risk  and,
therefore, will not do so.   Since Officer Colegrove did not see your client,
the City is assuming 100% responsibility for the accident.
As I see it, the only remaining issues are what damages were proximately
cause by this accident and whether the City is entitled to setoff under R.C.
[Section] 2744.05(B).
{¶16} According to the jointly filed answer where immunity was not asserted on
behalf  of  the  City  and  this  letter  from  the  City,  the  Jontonys  relied  on  the  City’s
admissions and concessions   and only prepared for trial concerning damages.   We find
this reliance reasonable considering that the June 22, 2009 letter was in response to the
Jontonys’ counsel asking for a “stipulation” regarding liability.   See Reed v. Multi-Cty.
Juvenile Sys., 7th Dist. No. 09 CO 27, 2010-Ohio-6602, ¶ 51 (“even in a jointly filed
answer, if  only one of  the defendants is named regarding a particular defense, it is
reasonable to assume that the unnamed defendant did not intend to raise the defense”);
O’Brien  v.  Olmsted  Falls,  8th  Dist.  Nos.  89966  and  90336,  2008-Ohio-2658,  ¶  13
(pursuant to Civ.R. 8(C), defendant required to set forth affirmative defenses that would
effectively  preclude  liability,  and  failure  to  do  so  waives  the  defense,  including
immunity).
{¶17}  The  City maintains  that  the  trial  court  abused  its  discretion  in  finding
prejudice because (1) discovery was still ongoing and trial was three months away, (2) the
defense was raised only eight months after the action commenced, and (3) the Jontonys
would not be faced with any different obstacles that would have been present if the

immunity  defense  had  been  asserted  in  the  City’s  original  answer.    The  City cites
Hoover, 12 Ohio St.3d 1, 465 N.E.2d 377 and McGlone v. Spade, 3d Dist. No. 3-01-26,
2002-Ohio-2179, in support of its arguments.
{¶18} In Hoover, the defendant moved for leave to amend its answer to assert the
affirmative defense of notice more than two years after commencement of litigation and
after a trial date had been set.   The Ohio Supreme Court, in finding the trial court abused
its discretion in denying leave, held that  “where  [an affirmative] defense is tendered
timely and in good faith, and no reason is apparent or disclosed for denying leave, the
denial of leave to file such an amended pleading or the subsequent striking of a defense
from  an  amended  pleading  is  an  abuse  of  discretion.”    Id.  at  5,  citing  Peterson  v.
Teodosio, 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973).   Additionally, the court noted
that the plaintiffs were not prejudiced by the addition of the affirmative defense “as they
faced no obstacles by the amendment which they would have faced had the original
pleading raised the defense.”   Id. at 6.
{¶19} In McGlone, the Third District concluded that the trial court did not abuse
its  discretion  in  granting  the  defendant’s  motion  to  amend  its  answer  to  assert  the
affirmative defense of immunity.   Id. at ¶ 56.   The defendant did not discover that the
defense of immunity existed until after the plaintiff was deposed and it was discovered
that due to an allowable workers’ compensation claim the plaintiff filed, the defendant
had an immunity defense.   Id. at ¶ 53.   The defendant immediately moved the trial court
for leave to amend her answer, explaining the rationale and basis for the amendment.

The court, citing Hoover, held that the plaintiff would not be faced with any additional
obstacles in proving liability because the defendant always denied she acted negligently.
The court also distinguished the Ohio Supreme Court’s decision of Turner v. Cent. Local
School Dist., 85 Ohio St.3d 95, 1999-Ohio-207, 706 N.E.2d 1261, noting that there was
not a complete lack of rationale for the defendant’s failure to assert the defense earlier.
{¶20} We find both Hoover and McGlone distinguishable from the facts in this
case.   Unlike in Hoover, where the trial court failed to indicate any basis for denying the
defendant leave to amend, the trial court in this case clearly stated that the Jontonys would
be prejudiced due to the assurances the City made in its June 22, 2009 letter.
{¶21}  Moreover, unlike in  McGlone,  where  the  applicability of  the immunity
defense was discovered in depositions, the affirmative defense of immunity was  “an
obvious defense” from the face of the complaint, yet the City failed to assert it on its own
behalf.   See Turner at 99 (defendant failed to give any rationale or explanation for its
failure to assert obvious defense in answer).
{¶22} In both Hoover and McGlone, the courts identified that the plaintiffs would
not be prejudiced by the addition of the affirmative defense as they faced no additional
obstacle that would not have been present if the original pleading raised the defense.   In
Hoover, the affirmative defense to be added was the statute of limitations defense, which
by its nature did not place any additional obstacle before the plaintiff  — the issue is
whether the cause of action was timely filed within the limitations period.   In McGlone,
where the immunity defense was allowed to be asserted through an amended answer, the

defendant denied any liability from the outset of the case, thus, liability needed to be
proven by plaintiff at trial.   Accordingly, whether the plaintiff had to prove liability at
trial or in response to an immunity defense, the McGlone plaintiff was faced with no
additional obstacle with the defendant amending her answer to assert immunity.
{¶23} In the case before this court, however, the City admitted its negligence and
assumed 100% responsibility for the accident.   Therefore, the Jontonys would be faced
with the additional obstacle of proving that the City was not immune from liability if the
City was allowed to amend its answer  — an obstacle that was nonexistent for eight
months into litigation.   See Hayden v. Ford Motor Co., 497 F.2d 1292 (6th Cir.1974)
(where plaintiff takes action in reliance on defendant’s failure to assert an affirmative
defense, plaintiff is prejudiced if leave to amend the answer is subsequently granted to
assert the affirmative defense).
{¶24} Additionally, unlike in McGlone and more akin to Turner, the City gave no
logical rationale or explanation for its failure to assert the obvious defense.   The City
contended that the case law supporting an “emergency call” defense was not discovered
until after the answer was filed.   However, the newly discovered case law cited by the
City, Longley v. Thailing, 8th Dist. No. 91661, 2009-Ohio-1252, did not establish a new
rule of law applicable to the case.   This case merely reiterated a longstanding line of
cases concerning the “emergency call” doctrine.   See, e.g., Colbert v. Cleveland, 99 Ohio
St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781.   Moreover, these cases were in existence
when the City sent its June 22, 2009 letter maintaining that it was not asserting immunity

because Colegrove “was not on an ‘emergency call’ as that phrase has been defined by
R.C.  [Section]  2744.02(B)(1) and the case law interpreting the same.”    Much like in
Turner, no rationale or explanation for its failure to assert the obvious affirmative defense
was given by the City.
{¶25} We also find that when the City first raised the issue of immunity in its
instanter motion for summary judgment, the trial was not three months away as the City
argues, rather it was scheduled to commence in less than seven weeks.   And even though
the trial was rescheduled, when the City finally requested leave to amend its answer, in
November, trial was less than five weeks away.
{¶26} Finally, we note that in the Jontonys’ trial brief, which was filed one week
after the City requested leave to file its motion for summary judgment, the Jontonys
identify a portion of their brief as “Stipulations,” where it is stated that “Defendants have
stipulated to negligence, waived immunity, and stipulate to liability.”   The record does
not reflect that the City has ever challenged this statement with the trial court.
{¶27} The Jontonys argued they would be prejudiced if the City was allowed to
amend its answer and presented the trial court with documentation evidencing the amount
of money they expended in preparation for trial on damages — the only issue remaining
to litigate.   While the issue of whether the City would prevail on its immunity defense is
not before this court, we note that the City’s immunity from liability would negate the
trial on damages.    Accordingly, the time and resources spent for trial would be for
naught.   This scenario is precisely what this court envisioned when it stated in Supportive

Solutions Training Academy v. Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022
and  95287, 2012-Ohio-1185, ¶ 17, that “a political subdivision should timely assert its
immunity defense so that the other litigant does not devote its time and resources in
litigating a lawsuit that could be barred by immunity.”   See also Hubbell v. Xenia, 115
Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 26, quoting Burger v. Cleveland Hts.,
87 Ohio St.3d 188, 199-200, 1999-Ohio-319, 718 N.E.2d 912 (1999) (Lundberg Stratton,
J., dissenting)  (“‘As the General Assembly envisioned, the determination of immunity
could be made prior to investing the time, effort, and expense of the courts, attorneys,
parties, and witnesses * * *’”).
{¶28} Accordingly, the trial court’s decision finding that it would be prejudicial to
the Jontonys is neither unreasonable nor arbitrary.    Furthermore, after the trial court
denied the City’s instanter motion for leave to file summary judgment, the City hired an
independent medical examiner and participated in mediation.    Finally, the City’s new
trial counsel who entered an appearance in August, waited three months to request leave
to  amend  its  answer  to  assert  immunity.    These  subsequent  actions  by the  City in
preparing for trial on damages and the delay in seeking to amend its answer further
evidence that the Jontonys reasonably relied on the City’s initial position that immunity
was not an issue.
{¶29} The trial court did not find that the City acted in bad faith, but found that the
City’s failure to timely assert the immunity defense was prejudicial to the Jontonys.   In
light of the foregoing discussion and reasons, we cannot say that the trial court abused its

discretion in denying the City leave to amend its answer to assert the immunity defense.
The City’s first assignment of error is overruled.
II.   Nunc Pro Tunc
{¶30} The City argues in its second assignment of error that the trial court erred in
granting plaintiff’s motion for a nunc pro tunc entry to clarify a previous order by entry of
March 28, 2012.   We agree.
{¶31} This court reiterated the longstanding rule of the use of nunc pro tunc in
Scaglione v. Saridakis, 8th Dist. No. 91490, 2009-Ohio-4702.
A nunc pro tunc order may be issued by a trial court, as an exercise of its
inherent power, to make its record speak the truth. It is used to record that
which the trial court did, but which has not been recorded.   It is an order
issued now, which has the same legal force and effect as if it had been
issued at an earlier time, when it ought to have been issued.   Thus, the
office of a nunc pro tunc order is limited to memorializing what the trial
court actually did at an earlier point in time.    It can be used to supply
information which existed but was not recorded, to correct mathematical
calculations, and to correct typographical or clerical errors.
A  nunc pro tunc order cannot be used to supply omitted action, or to
indicate what the court might or should have decided, or what the trial court
intended to decide. Its proper use is limited to what the trial court actually
did decide. That, of course, may include the addition of matters omitted
from the record by inadvertence or mistake of action taken. Therefore, a
nunc pro tunc order is a vehicle used to correct an order previously issued
which  fails  to  reflect  the  trial  court’s  true  action.                                   (Internal  citations
omitted).
Id. at ¶ 9, quoting State v. Greulich, 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132 (9th

Dist.1988).
{¶32} Moreover, “the function of a nunc pro tunc entry is not to correct or modify
an  existing  judgment  but  rather  to  make  the  record  conform  to  what  has  already
occurred.”   Pepera v. Pepera, 8th Dist. No. 51989, 1987 Ohio App. LEXIS 6807 (Mar.
26, 1987).
{¶33} The trial court initially denied the City’s instanter motion for leave to file a
motion for summary judgment because the motion was based on the assertion of political
immunity, which was an affirmative defense not raised by the City in its answer.   An
affirmative  defense  raised  for  the  first  time  on  summary  judgment  is  not  proper.
Supportive Solutions, 8th Dist. No. 95287, 2012-Ohio-1185, at ¶ 24, citing Mossa v. W.
Credit Union, Inc., 84 Ohio App.3d 177, 181, 616 N.E.2d 571 (10th Dist.1992).
{¶34} However, the trial court attempted to expand its rationale for denying the
City’s motion by way of nunc pro tunc.   The trial court was not correcting a mistake,
rather it was expanding on its decision, at the request of the Jontonys.   Reviewing the
Jontonys’ motion for a nunc pro tunc entry to clarify a previous order, its stated purpose
was to prevent the City from making a certain argument on appeal.   The entry modifies
the court’s prior decision to reflect the additional information and rationale the Jontonys
wished the trial court would have included when it initially ruled on the City’s motion.
This is not the proper purpose of a nunc pro tunc.
{¶35} In this case, the trial court’s true action was to deny the instanter motion for
leave to file a motion for summary judgment, which is what it initially did.   The nunc pro

tunc served no other purpose than to further explain an order of the court that needed no
further explanation to reflect the truth of the record.    Accordingly, the City’s second
assignment of error is sustained.   On remand, the trial court is instructed to vacate the
March 27, 2012 nunc pro tunc order.
III.   Directed Verdict/Immunity
{¶36} In its third and fourth assignments of error, the City contends that the trial
court erred in denying the City’s motion for directed verdict because it is immune from
liability.   However, as previously noted, the City failed to assert the defense of immunity
in its responsive pleading, accordingly, the defense of immunity was waived and could
not be used as an argument in favor of a directed verdict.   See, e.g., Spence, 109 Ohio
App. 357, 672 N.E.2d 213.
{¶37} Moreover, although the City did file a motion for judgment notwithstanding
the verdict and a post-trial motion to amend its answer to conform to the evidence
pursuant to Civ.R.  15(B), the City has failed to argue or assign any error on appeal
regarding  the  trial  court’s  denial  of  these  motions.     The  City’s  third  and  fourth
assignments of error are overruled.
IV.   Damages
{¶38} In its final assignment of error, the City argues that the trial court erred in
partially denying its motion to enforce setoffs and non-economic damages cap pursuant to
R.C. 2744.05.
{¶39} Following the jury verdict, the City moved the court to apply and enforce

setoffs and non-economic damages cap.   Included in the motion, the City argued that it is
entitled to a setoff of the full amount of the jury’s award of $250,000 for “lost wages and
loss of services” pursuant to R.C. 2744.05(B)(1).   The trial court determined that Mr.
Jontony’s union pension benefits are not considered “benefits” under R.C. 2744.05; thus,
not subject to setoff.   The trial court also determined that it was left to speculate how
much of the jury verdict was for lost wages and how much was for loss of services, but
from the evidence, it apportioned that $48,859 was subject to setoff because the evidence
was clear that this portion would necessarily be from lost wages.
{¶40} The City contends on appeal that the disability benefits received by Mr.
Jontony through social security and his union pension plan exceed the  $250,000 jury
award and, therefore, the entire award should be set off pursuant to R.C. 2744.05(B).
Within this argument the City raises three issues: (1) whether the benefits paid to Mr.
Jontony through his union pension plan, classified as retirement disability benefits, are
subject to setoff under R.C. 2744.05(B); (2) whether the Jontonys should benefit from the
deficient  jury  interrogatories  when  the  interrogatories  used  were  submitted  by  the
Jontonys; and (3) whether “loss of services” is subject to setoff under R.C. 2744.05(B).
{¶41} Because this court is asked to interpret R.C. 2744.05, we review this matter
de novo.
A.   Union Pension Benefits
{¶42} The gravamen of the City’s argument is that the benefits paid to Mr. Jontony
pursuant to his Ohio Carpenters’ Pension Union Fund are collateral source benefits to be

setoff under R.C. 2744.05.
{¶43}  R.C.                                                                                    2744.05(B)  provides  for  setoff  in  an  action  against  a  political
subdivision  to  recover  damages  for  injury  caused  by  an  act  in  connection  with  a
governmental function.
(B)(1) If a claimant receives or is entitled to receive benefits for injuries or
loss allegedly incurred from a policy or policies of insurance or any other
source, the benefits shall be disclosed to the court, and the amount of the
benefits shall be deducted from any award against a political subdivision
recovered by that claimant.
Accordingly, the City is entitled to certain setoff amounts that Mr. Jontony received or
would receive from collateral source benefits.
{¶44} “Benefits” under R.C. 2744.05(B), has been defined as “financial assistance
received in time of sickness, disability, unemployment, etc. either from insurance or
public programs such as social security.”   Vogel v. Wells,  57 Ohio St.3d  91,  98,  566
N.E.2d  154, quoting Black’s Law Dictionary  158  (6th Ed.1990).   The Ohio Supreme
Court has also included Medicare and Medicaid as the “type of collateral source benefits
contemplated by R.C. 2744.05(B).”   Galanos v. Cleveland, 70 Ohio St.3d 220, 222, 638
N.E.2d 530 (1994), and Buchman v. Bd. of Edn. of the Wayne Trace Local School Dist.,
73 Ohio St.3d 260, 1995-Ohio-136, 652 N.E.2d 952, paragraph two of the syllabus.   This
classification  has  never  been  expanded  to  include  monies  received  from self-funded
pensions, and we decline to broaden this classification today.
{¶45} The Carpenters’ Pension Fund is a self-funded pension plan, which Mr.
Jontony contributed to for his retirement.    According to the terms of  the plan, Mr.

Jontony was permitted to take an early retirement due to his disability.   Moreover, and
per the terms of the plan, the amount of his monthly benefit was his fully accrued pension
benefit under the Plan.   The benefits he received were retirement benefits, which he was
permitted to access early due to his disability.   Accordingly, we find Mr. Jontony’s union
pension plan is not a “public program” as defined by the Ohio Supreme Court; thus, not
subject to the setoff provisions of R.C. 2744.05(B).
B.   Jury Interrogatories and “Loss of Services”
{¶46} The jury interrogatories submitted requested the jury to apportion its general
verdict  into  six  categories:                                                                  (1)  Past  Medical  Expenses,  (2)  Economic  Compensatory
Damages  for  Henry  Jontony,  (3)  Non-economic  Compensatory  Damages  for  Henry
Jontony, (4) Loss of Consortium for Patricia Jontony, (5) Loss of Consortium for Kara
Jontony, and (6) Loss of Consortium for Dominic Jontony.   The interrogatories separated
“Economic Compensatory Damages” into two subsections: (A) Lost wages and loss of
services and (B) Future medical care and treatment.   Pertinent to the issue raised by the
City, the jury awarded Mr. Jontony $250,000 for “lost wages and loss of services.”
{¶47} The City contends that it is entitled to setoff the full amount of the jury’s
award  for  “lost  wages  and  loss  of  services”  because  the  amount  of  Social  Security
disability benefits Mr. Jontony received or is entitled to receive exceeds the jury award.
{¶48} In so far as the City is not entitled to any setoff of the union pension benefits
Mr. Jontony received or is entitled to receive, the City is entitled to a setoff of the Social
Security disability benefits Mr. Jontony received or is entitled to receive, but only to the

extent the benefits were actually included in the jury award.
A political subdivision is entitled to an offset for collateral benefits only to
the extent that such benefits are actually included in the jury’s award, and is
entitled to an offset for future collateral benefits only to the extent that they
can be determined with a reasonable degree of certainty.   Thus, it is the
defendant’s burden to prove the extent to which it is entitled to an offset
under R.C. 2744.05(B).
Buchman, 73 Ohio St.3d 260, 270, 1995-Ohio-136, 652 N.E.2d 952.
{¶49} Determining whether a jury “actually included” in its award a benefit to be
setoff can be difficult.
Although  R.C.                                                                                   2744.05(B)  does  not  require  the  submission  of  jury
interrogatories  to  quantify the  categories  of  damages  that  make  up  the
general  verdict                                                                                 *  *  *  such  interrogatories  are  the  most  efficient  and
effective method, if not the only method, by which to determine whether the
collateral benefits to be deducted are within the damages actually found by
the jury.
Id., citing Sorrell v. Thevenir, 69 Ohio St.3d 415, 424, 1994-Ohio-38, 633 N.E.2d 504.
{¶50}   In this case, the jury interrogatories fail to sufficiently separate lost wages
and loss of services to determine what amount the jury apportioned for “lost wages” and
“loss of services.”   The City asserts that this deficiency in the jury interrogatories was
created by the Jontonys; thus, they should not benefit from the invited error.   However,
the burden is on the City “to prove the extent to which it is entitled to an offset under R.C.
2744.05.”   Buchman at paragraph five of the syllabus.
{¶51} While there is evidence in the record that the City requested that the jury
interrogatory for “lost wages” be divided as “past lost wages” and “future lost wages,” the
City did not object to any inclusion of “loss of services” in the jury interrogatory.   We

further note that the City did not assign as error the trial court’s decision denying the use
of the City’s proposed jury interrogatories, the inclusion of “loss of services” within “lost
wages,”  or  the  inclusion  of                                                                 “loss  of  services”  under  the             “economic  compensatory
damages” category of the jury interrogatories.                                                  “To the extent that the failure to propose
such interrogatories caused the trial court to speculate as to the amount of benefits to be
deducted from the jury’s verdict, the City failed in its burden.”   See Buchman at 270.
{¶52} In so far as the City maintains that “loss of services” are subject to setoff
under R.C. 2744.05(B), this court has not been provided with, nor are we able to locate,
any case law that supports the City’s proposition that Social Security disability benefits
are designed to compensate for loss of services.   Accordingly, we find that the City is not
entitled to setoff for “loss of services.”
{¶53}   However, we agree with the trial court that while the jury interrogatories
do leave this court to speculate how much of the  $250,000 was apportioned for “lost
wages”  and  “loss  of  services,”  we  can  readily determine  that  some  amount  can  be
attributed to lost wages, to which the City would be entitled to a setoff.
{¶54} Based on the evidence at trial, the total amount the jury could have awarded
to Mr. Jontony for “loss of services” is $201,141 — the value of Mr. Jontony’s loss of
services as testified by Dr. John Burke.   Accordingly, the remaining $48,859 can only
then be apportioned to Mr. Jontony’s lost wages.
{¶55}   Testimony was provided at trial that Mr. Jontony was completely disabled
as a result of the accident.   Because any jury award for lost wages would be based on Mr.

Jontony being determined to be disabled, and he has in fact received Social Security
disability payments, the City would be entitled to a setoff of Social Security disability
payments.   The trial court did not err in finding that the City was entitled to a setoff of
Social Security disability payments up to $48,859.
{¶56} Accordingly, the City’s final assignment of error is overruled.
V.   Cross appeal — Prejudgment Interest
{¶57} The Jontonys raise one assignment of error in their cross-appeal challenging
the trial court’s denial of prejudgment interest.
{¶58} R.C. 1343.03(C) governs the award of prejudgment interest and provides in
pertinent part:
(1) If, upon motion of any party to a civil action that is based on tortious
conduct, that has not been settled by agreement of the parties, and in which
the court has rendered a judgment, decree, or order for the payment of
money, the court determines at a hearing held subsequent to the verdict or
decision in the action that the party required to pay the money failed to
make a good faith effort to settle the case and that the party to whom the
money is to be paid did not fail to make a good faith effort to settle the case,
interest on the judgment, decree, or order shall be computed as follows: * *
*.
{¶59} The Ohio Supreme Court has set forth four factors a trial court should
consider in determining whether a party has made a good faith effort to settle a case:
(1) whether the party has fully cooperated in discovery proceedings,  (2)
whether the party has rationally evaluated his or her risk and potential
liability, (3) whether the party has attempted to unnecessarily delay any of
the proceedings, and (4) whether a good faith monetary offer was made, or
responded to in good faith if made by the other party.
Kalain v. Smith, 25 Ohio St.3d 157, 495 N.E.2d 572, syllabus.   The moving party bears

the burden of demonstrating that the other party failed to make a good faith effort to settle
the case.    Moskovitz v. Mt. Sinai Med. Ctr.,  69 Ohio St.3d  638,  1994-Ohio-324,  635
N.E.2d 331.
{¶60}  The decision whether a party’s settlement efforts indicate good faith is
within the discretion of  the trial court.    This court will not disturb the trial court’s
findings absent an abuse of discretion.   Kalain at 159.
{¶61} In this case, the trial court found that the City had a reasonable expectation
that any jury award would likely be subject to setoffs and noneconomic damages caps
pursuant to R.C.  2744.05.   The trial court found these impositions would have likely
factored  into  the  City’s  calculus  in  evaluating  its  risks  and  potential  liability.
Accordingly, the trial court ultimately concluded that the City made a good faith monetary
settlement offer and responded in good faith to settlement offers made by the Jontonys.
{¶62} The Jontonys contend that the trial court abused its discretion when it issued
its decision without providing any analysis about whether the City made a good faith
effort to settle the case considering the facts and evidence contained in the record.   The
Jontonys argue that the City failed to make a good faith effort to settle the case because
(1) the record shows that the City’s settlement authority was substantially higher than the
City’s settlement offers and (2) the jury verdict was substantially disparate to the amount
of the City’s settlement offer.
{¶63}   The Jontonys ask this court to establish a rule of law that good faith is
evidenced  by comparing the offers made by one party to the settlement authority it

possesses — if an offer to settle is substantially disparate to actual settlement authority,
then the offering party has not exercised good faith in settlement.   While this may be a
factor, it cannot be the sole basis for finding lack of good faith.
{¶64} The record reflects that the City’s settlement authority was higher than the
City’s settlement offers.   However, this factor alone does not establish that the City did
not  act  in good faith.    Although an insurance company may arm its attorneys with
settlement authority, the attorneys evaluate the case, the risks, the potential liability, and
any  defenses,  setoffs,  or  caps  that  may  preclude  or  limit  such  risk  or  liability.
Accordingly, the difference in settlement authority and offer should not, in and of itself,
determine that a party did not act in good faith in settlement efforts.   See, e.g., Kalain (no
duty to disclose settlement authority when a reasonable, good faith belief exists of no
liability).
{¶65} Moreover, a
lack of good-faith effort to settle is not demonstrated simply by comparing
the amount of a settlement offer to the verdict actually returned by a jury[,]
although a substantial disparity between an offer and a verdict is one factor
circumstantially demonstrating whether a party made a good-faith offer to
settle or the adverse party failed to do so * * *.
Andre v. Case Design, Inc., 154 Ohio App.3d 323, 2003-Ohio-4960, 797 N.E.2d 132, ¶
15 (1st Dist.).
{¶66} The City’s highest offer to settle the case was $175,000, and the Jontonys’
lowest offer was $2.9 million.   The jury returned a total verdict of $1.1 million, however,
after setoffs (which are at issue on appeal) and a non-economic damages cap, the amount

awarded to the Jontonys was reduced to $796,891.07.   Accordingly, while the initial jury
verdict was substantially higher than the City’s offer to settle the case, we cannot fail to
recognize that the initial jury verdict and final amount of judgment is also substantially
lower than the Jontonys’ final settlement offer.
{¶67} The record is abundantly clear that the trial court was actively involved in all
aspects of this case including settlement negotiations, and was in the best position to
evaluate whether good faith was exercised by both parties in settling this case.   We find
the trial court’s decision denying prejudgment interest was based on competent, credible
evidence; thus, not an abuse of discretion.   The Jontonys’ assignment of error raised in
its cross-appeal is overruled.
{¶68}  Judgment  affirmed  in  part,  reversed  in  part,  and  remanded  for  further
proceedings consistent with this opinion.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., CONCURS;

COLLEEN CONWAY COONEY, J., DISSENTS WITH SEPARATE OPINION.
COLLEEN CONWAY COONEY, J., DISSENTING:
{¶69} I respectfully dissent.   I would reverse the trial court’s judgment based on
Strongsville’s arguments in the first assignment of error relating to the court’s denial of
its motion to amend its answer.
{¶70} Civ.R. 15(A) provides:
A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon
the trial calendar, he may so amend it at any time within twenty-eight days
after it is served.    Otherwise a party may amend his pleading only by leave
of court or by written consent of the adverse party.    Leave of court shall be
freely given when justice so requires.
{¶71} In Wilmington Steel Prods., Inc. v. Cleve. Elec. Illum. Co., 60 Ohio St.3d at
121-122, 573 N.E.2d 622 (1991), the Ohio Supreme Court explained:
The language of Civ. R. 15(A) favors a liberal policy when the trial judge is
confronted with a motion to amend a pleading beyond the time limit when
such amendments are automatically allowed.                                                    “*** Leave of court shall be
freely given when justice so requires  ***,” the rule states.    This court’s
role is too determine whether the trial judge’s decision was an abuse of
discretion, not whether it was the same decision we might have made.
(Citation omitted.)

Furthermore, a motion for leave to amend should be granted to a party absent a finding of
bad faith, undue delay or prejudice to the opposing party. CommuniCare, Inc. v. Wood
Cty. Bd. of Commrs., 161 Ohio App.3d 84, 2005-Ohio-2348, 829 N.E.2d 706, ¶ 17.
{¶72} In the instant case, the trial court gave a single reason for its denial of
Strongsville’s motion to amend  — prejudice to Jontony.    Strongsville argues that the
trial court abused its discretion because there is no evidence of bad faith, undue delay, or
prejudice.    Jontony argues that the motion was properly denied, although not stated in
the record, due to bad faith, undue delay, and prejudice, as well as defense counsel’s
alleged stipulation.
Stipulation
{¶73}  First,  the  letter  that  Jontony  points  to  as  evidence  of  Strongsville’s
“stipulation,” does not constitute a stipulation.    In Karwowska v. St. Michael Hosp., 8th
Dist. No. 90041, 2008-Ohio-4235, ¶ 22, this court addressed a similar argument that a
statement made in a letter constituted a stipulation.
UES claims that they relied on this statement, forgoing any attempt to
establish at trial that the hospital was liable on a Clark claim.    We do not
find,  however,  that  the  statement  constitutes  a  stipulation  or  judicial
admission that the hospital was “liable in tort.”    As recognized by the First
Appellate District in Beneficial Ohio Inc. v. Primero, L.L.C.,  166 Ohio
App.3d 462, 2006-Ohio-1566, 851 N.E.2d 510, ¶  12, judicial admissions
generally constitute either “a distinct statement of fact which is material and

competent and which is contained in a pleading[,]” or “admissions of facts
made  by attorneys  during  the  progress  of  a  trial[,]”  or  “admissions  of
counsel in motions or other papers filed by them[.]”    Here, we cannot say
that a counsel’s single statement in a letter, not filed with the court or
responded  to  by opposing  counsel,  satisfies  the  definition  of  a judicial
admission or a stipulation.    And given the context of the statement, we do
not find that it was reasonable for UES’s counsel to rely on the statement to
his purported detriment.
{¶74} Similarly, in the instant case, the original attorney’s statement in a letter, not
filed with the court or termed a stipulation, does not satisfy the definition of a judicial
admission or stipulation.    Therefore, it would not be reasonable to deny Strongsville’s
motion to amend based on an assumption that Jontony relied on this statement.
Waiver of Affirmative Defense
{¶75} Second, Strongsville did not waive the affirmative defense of immunity by
not raising it in its answer.
{¶76} Per Civ.R. 12(H), Strongsville would have waived the defense, had it not
moved to amend its answer pursuant to Civ.R. 15(A), which specifically provides the
opportunity for a party to amend his pleading by leave of court or by written consent of
the adverse party.    As stated above, a trial court shall freely give the party leave to
amend when “justice so requires.”    I would find justice required granting the motion to
amend.

Failure to Appeal Denial of Summary Judgment
{¶77} Third, Strongsville did not waive the affirmative defense of immunity by
failing to appeal the trial court’s denial of its motion for leave to file summary judgment.
[A] summary judgment motion is not the proper format in which to raise an
affirmative defense for the first time in a case.    Mossa v. W. Credit Union,
Inc.,                                                                                          84  Ohio  App.3d   177,   181,   616  N.E.2d   571  (10th  Dist.   1992).
Affirmative defenses cannot be asserted for the first time in a motion for
summary judgment.    Carmen v. Link (1997), 119 Ohio App.3d 244, 695
N.E.2d 28.
Supportive Solutions Training Academy v. Electronic Classroom of Tomorrow, 8th Dist.
Nos. 95022 and 95287, 2012-Ohio-1185, ¶ 24 (“ECOT”).1
{¶78} Jontony attempts to frame this issue in terms of case law regarding the
denial of a motion for summary judgment, in which defendants raised immunity for the
first time.    However, in the instant case, Strongsville did not file a motion for summary
judgment but only sought leave to file such a motion to assert the affirmative defense of
immunity.    The trial court denied the City leave to file, and summary judgment was not
revisited.    Thus, case law regarding motions for summary judgment are not applicable
here because the City could not appeal a motion they were not permitted to file.
{¶79}  This  court  recently dealt with a similar question of  first impression in
ECOT, where we stated:
1Appeal pending in the Ohio Supreme Court, Case No. 2012-0790.

In Hubbell, the Ohio Supreme Court held that “when a trial court denies a
motion in which a political subdivision or its employee seeks immunity
under  R.C.  Chapter  2744,  that  order  denies  the  benefit  of  an  alleged
immunity  and  is  therefore  a  final,  appealable  order  pursuant  to  R.C.
2744.02(C).”    Id. at syllabus.
As this court recognized in the en banc decision in Digiorgio v. City of
Cleveland, 8th Dist. No. 95945, [196 Ohio App.3d 575,] 2011-Ohio-5824,
964 N.E.2d 495, “although decided in the context of a motion for summary
judgment, the Hubbell court made clear that its holding was not limited to
only  motions  for  summary  judgment.”    Digiorgio  at                          ¶ 5.    The  Ohio
Supreme Court held,
We conclude that the use of the words “benefit” and “alleged”
illustrates that the scope of this provision is not limited to
orders  delineating  a                                                            “final”  denial  of  immunity.     R.C.
2744.02(C) defines as final a denial of the  “benefit” of an
“alleged”  immunity,  not  merely  a  denial  of  immunity.
Therefore, the plain language of R.C.  2744.02(C) does not
require  a  final  denial  of  immunity  before  the  political
subdivision has the right to an interlocutory appeal.
Accordingly, we hold that when a trial court denies a motion
in  which  a  political  subdivision  or  its  employee  seeks
immunity  under  R.C.  Chapter  2744,  that  order  denies  the
benefit  of  an  alleged  immunity  and  is  therefore  a  final,
appealable order pursuant to R.C. 2744.02(C).    Hubbell at ¶
12, 27.
The Hubbell court explained the policy reasons for its broad interpretation
of R.C. 2744.02(C) as follows:                                                    “As the General Assembly envisioned, the
determination of immunity [should] be made prior to investing the time,
effort, and expense of the courts, attorneys, parties, and witnesses * * * .”
Id. at ¶ 26, quoting Burger v. Cleveland Hts., 87 Ohio St.3d 188, 199-200,
[1999-Ohio-319,] 718 N.E.2d 912 (1999).
However, the question before this court is whether this broad interpretation
encompasses motions for leave to file amended responsive pleadings.    We
find that it does not.

We find most significant the cases wherein Hubbell and its progeny are
cited and relied on for authority involve dispositional-type motions, i.e.,
Civ.R. 12(B)(6) motions to dismiss, Civ.R. 12(C) motions for judgment on
the pleadings, and Civ.R. 56 motions for summary judgment.    See, e.g.,
Digiorgio; Rucker v. Newburg Hts., 8th Dist. No. 89487, 2008-Ohio-910;
Summerville v. Forest Park,  128 Ohio St.3d  221,  2010-Ohio-6280,  943
N.E.2d 522.    To expand Hubbell to include orders such as denial of leave
to file amended pleadings or motions would open the door for political
subdivisions  to  challenge  all  adverse  rulings  potentially  affecting  its
immunity defense with an immediate appeal.    We do not believe Hubbell
was intended to be read this broadly.
Id. at ¶ 12-16.    The denial of a motion for leave to file summary judgment falls squarely
in line with ECOT.    I would argue that, consistent with ECOT, Hubbell cannot be read
so broadly as to encompass the denial of a motion for leave to file summary judgment.
{¶80} Thus, the City has not waived the affirmative defense by failing to appeal
the court’s denial of its motion for leave to file summary judgment.
Untimeliness
{¶81} Fourth, Strongsville’s motion was neither untimely nor was it made with
undue delay.
{¶82} In Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 1999-Ohio-207,
706  N.E.2d  1261, the Ohio Supreme Court ruled that the trial court had abused its
discretion  in  allowing  Central  to  amend  its  answer  two  years  and  ten  months  after
litigation had commenced and after discovery was complete.
{¶83} In the instant case, Strongsville filed its motion to amend the answer 11
months after the complaint was filed, ten months after the joint answer was filed, and
within three months of attempting to raise immunity in a motion for summary judgment.

The motion to amend was filed five weeks prior to the scheduled trial date of December
28, 2009.2    At the time Strongsville filed the motion to amend, discovery was not yet
complete.    Strongsville’s  motion  for  enlargement  of  time  for  discovery  had  been
granted, and discovery was ongoing.
{¶84} I would find the facts in the instant case are clearly distinguishable from
those in Turner, and more similar to those in Midstate Educators Credit Union, Inc. v.
Werner, 175 Ohio App.3d 288, 2008-Ohio-641, 886 N.E.2d 893 (10th Dist.), in which the
appellate court found no abuse of discretion in granting Midstate’s motion to amend its
answer eight months after litigation began and after a failed attempt at arguing immunity
on summary judgment, similar to the instant case.    Id. at ¶ 19.
Unduly Prejudicial
{¶85} Fifth, Strongsville’s motion was not unduly prejudicial.
{¶86} Jontony argues that allowing the City to amend its answer would have
created undue prejudice due to Jontony’s reliance on counsel’s statements that immunity
was not an issue.    Jontony argues that they would have been prejudiced based on the
thousands of dollars and hours spent on the case, under the assumption that immunity was
not an issue.
{¶87} Jontony also argues that they would not have dismissed Officer Colegrove
from the action had they known of immunity.    This argument is without merit because
he was dismissed voluntarily by Jontony only a month after the complaint was filed,
2Trial was ultimately held in June 2011.

giving the City a wide window in which to amend their answer and assert immunity for
the City.    And immunity was raised in the answer on the officer’s behalf.
{¶88} While it is true that Jontony spent time and money on the case, these alone
are  insufficient  reasons  to  deny  the  City’s  motion  to  amend  early  in  litigation.
Fed.R.Civ.P. 15 reflects two of the most important policies of the federal rules.    See 6
Wright & Miller, Federal Practice and Procedure, Section 471, at 359 (1971).    First, a
liberal amendment policy provides the maximum opportunity for each claim to be decided
on the merits rather than on procedural deficiencies. Id. (Emphasis added.)    Second, the
rule reflects the fact that pleadings are assigned the limited role of providing the parties to
a lawsuit with notice of the nature of the pleader’s claim or defense.
{¶89} Moreover, the merits of the affirmative defense of immunity based on the
“emergency call” doctrine are not clearly established in the instant case.    The officer’s
deposition  is  not  dispositive  regarding  whether  his  actions  would  afford  the  City
immunity.    Therefore, the time and money spent by Jontony was not wasted, because the
case might potentially require a trial despite allowing the City to amend its answer.    An
amendment to the answer would not necessarily have been dispositive of  the City’s
liability.
{¶90}  Having  argued  immunity  for  Officer  Colegrove  and  other  affirmative
defenses for the City, Jontony cannot argue that it was prejudiced by the City’s desire to
amend its answer.    Questions to Colegrove in his deposition regarding the call and
whether it was an emergency call support the City’s argument that Jontony suffered no

prejudice.
{¶91} It is clear from the record that mistakes were made by Strongsville’s counsel
in its initial handling of this case.    However, these mistakes did not prejudice Jontony to
such an extent that the court was within its discretion to deny the City’s motion to amend
its  answer.    I  would  find  that  Jontony was                                               “not  prejudiced  by the  addition  of  the
[affirmative] defense as [he] faced no obstacles by the amendment which [he] would not
have faced had the original pleading raised the defense.”    Hoover v. Sumlin, 12 Ohio
St.3d 1, 5-6, 465 N.E.2d 377 (1984).
Bad Faith
{¶92} Sixth, there is simply no evidence in the record to support a claim of bad
faith.    This is not a case in which the City was hiding facts or defenses from Jontony.
Immunity, as well as numerous other affirmative defenses were raised in Strongsville’s
joint answer.    The motion to amend the answer was filed soon after new counsel was
retained.    The failure to raise the affirmative defense in the original answer was clearly
not made with malice or purpose to confuse or delay the proceedings.
{¶93} Furthermore, Strongsville’s motion to amend contained its reason for the
original counsel’s failure to argue the affirmative defense, and explained that once the
mistake was discovered, new counsel attempted to correct the matter.    Failing to raise
the issue in the original answer was clearly not tactical.

{¶94} Thus, due to the lack of delay, bad faith, or prejudice, I would reverse the
trial  court  for  its abuse of  discretion in denying Strongsville’s motion to amend its
answer, as justice so requires.

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