text:
    RESCO HOLDINGS, L.L.C., Plaintiff v. AIU INSURANCE CO., et al., Defendants-Appellees
    [Appeal by National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Appellant]
    No. 106234
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: July 19, 2018
   Daniel J. Lynn, Donald C. Brown, Timothy R. Dingilian, Jackson & Campbell, P.C., One Lafayette Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC 20036, Stephen W. Funk, Ronald B. Lee, Roetzel & Andress, L.P.A., One Cleveland Center, 10th Floor, 1375 East Ninth Street, Cleveland, Ohio 44114, Arthur M. Kaufman, Kaufman, Drozdowski & Grendell, L.L.C., 29525 Chagrin Blvd., Pepper Pike, Ohio 44122, Richard C.O. Rezie, Alton L. Stephens, Gallagher Sharp, L.L.C., 1501 Euclid Avenue, Cleveland, Ohio 44115, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT

Michael C. Brink, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, Michele L. Backus, 1133 Connecticut Avenue, Washington, DC 20036, Edward B. Parks, II, James P. Ruggeri, Shipman & Goodwin, L.L.P., 1875 K. Street, Suite 600, Washington, DC 20006, Arthur M. Kaufman, Kaufman, Drozdowski & Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250, Pepper Pike, Ohio 44122, Keven Drummond Eiber, 5903 Grafton Road, Valley City, Ohio 44280, Richard C.O. Rezie, Gallagher Sharp, L.L.C., 1501 Euclid Avenue, Cleveland, Ohio 44115, For Hartford Accident and Indemnity Company

Daniel J. Lynn, Donald C. Brown, Timothy R. Dingilian, Jackson & Campbell, P.C., One Lafayette Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC 20036, Ronald B. Lee, Roetzel & Andress, L.P.A., 222 South Main Street, Suite 400, Akron, Ohio 44308, For AIU Insurance Company

Eric E. Caugh, Rolf E. Gilbertson, Patricia St. Peter, Zelle Hofmann Voelbel & Mason, L.L.P., 500 Washington Avenue South, Suite 4000, Minneapolis, Minnesota 55415, Thomas S. Mazanec, Terry Williams, Mazanec, Raskin & Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, For Employers Insurance Company of Wausau

Edward B. Parks, II, James P. Ruggeri, Shipman & Goodwin, L.L.P., 1875 K. Street, N.W., Suite 600, Washington, DC 20006, Michael C. Brink, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, Michele L. Backus, 1133 Connecticut Avenue, Washington, DC 20036, Keven Drummond Eiber, 5903 Grafton Road, Valley City, Ohio 44280, For First State Insurance Company

Kaisa Adams, Christopher R. Paar, Rolf E. Gilbertson, Patricia St. Peter, Eric E. Caugh, Zelle Hofmann Voelbel & Mason, L.L.P., 500 Washington Avenue South, Suite 4000, Minneapolis, Minnesota 55415, Thomas S. Mazanec, Mazanec, Raskin & Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139, For Nationwide Indemnity Company

Arthur M. Kaufman, Kaufman, Drozdowski & Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250, Pepper Pike, Ohio 44122, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, Terry Williams, Mazanec, Raskin & Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139, Stephen P. Brown, Charles W. Browning, Maryanne B. Foster, Patrick E. Winters, Plunkett & Cooney, P.C., 38505 Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304, For St. Paul Surplus Lines Insurance Company

Henry G. Grendell, Kaufman, Drozdowski & Grendell, L.L.C., 29525 Chagrin Blvd., Suite 250, Pepper Pike, Ohio 44122, Terry Williams, Mazanec, Raskin & Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139, Patrick E. Winters, Maryanne B. Foster, Charles W. Browning, Stephen P. Brown, Plunkett & Cooney, P.C., 38505 Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304, Arthur M. Kaufman, 29525 Chagrin Blvd., Pepper Pike, Ohio 44122, For Travelers Casualty & Surety Company

Arthur M. Kaufman, 29525 Chagrin Blvd., Pepper Pike, Ohio 44122, Kevin M. Young, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, Terry Williams, Mazanec, Raskin & Rider Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139, Maryanne B. Foster, Charles W. Browning, Stephen P. Brown, Patrick E. Winters, Plunkett & Cooney, P.C., 38505 Woodward Avenue, Suite 2000, Bloomfield Hills, Michigan 48304, For Travelers Indemnity Company

James P. Ruggeri, Edward B. Parks, II, Shipman & Goodwin, L.L.P., 1875 K. Street, N.W., Suite 600, Washington, DC 20006, Keven Drummond Eiber, 5903 Grafton Road, Valley City, Ohio 44280, Michele L. Backus, 1133 Connecticut Avenue, Washington, DC 20036, Eric Weiss, Cavitch, Familo & Durkin Co., L.P.A., 1300 East Ninth Street, 20th Floor, Cleveland, Ohio 44114, Kevin M. Young, Michael C. Brink, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, For Twin City Fire Insurance Company

Ronald B. Lee, Roetzel & Andress, L.P.A., 222 South Main Street, Suite 400, Akron, Ohio 44308, Daniel J. Lynn, Donald C. Brown, Timothy R. Dingilian, Jackson & Campbell, P.C., One Lafayette Centre, 300 South Tower, 1120 20th Street, N.W., Washington, DC 20036, For Lexington Insurance Company, Granite State Insurance Company, Landmark Insurance Company and American Home Assurance Company

BEFORE: E.T. Gallagher, J., E.A. Gallagher, A.J., and Keough, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, National Union Fire Insurance Company of Pittsburgh ("National Union"), appeals a judgment that determined its equitable share of the costs of defending and indemnifying its insured, Rust Engineering Company ("Rust"), against thousands of asbestos-related bodily injury claims. National Union claims the following four assignments of error:

1. The trial court erred by not applying the pro rata methodology in determining the merits of the equitable contribution claims.
2. The trial court erred in ruling that Hartford was entitled to equitable contribution, even though Hartford did not pay more than its fair share of the liability.
3. The trial court erred in ruling that National Union owed equitable contribution to Wausau and Hartford jointly, instead of determining the amount of damages individually based upon the amount that each insurer paid in excess of its fair share.
4. The trial court erred in awarding an undefined amount of "interest" for past defense and indemnity costs.

{¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

I. Facts and Procedural History

{¶ 3} Rust was a large construction and engineering firm that designed and built industrial facilities for a variety of clients including steel, tire, and chemical manufacturers, paper producers, and power plants. Asbestos-containing products were used in the construction, repair, and rebuilding of these industrial facilities over the course of several decades. Consequently, over 71,000 claims for asbestos-related bodily injuries were filed against Rust since 1995. The claimants alleged they were exposed to asbestos at various work sites while Rust was conducting operations.

{¶ 4} Rust obtained primary insurance from several insurance companies, including Hartford Accident and Indemnity Company ("Hartford"), Employers Insurance Company of Wausau ("Wausau"), Travelers Casualty and Surety Company ("Travelers"), Continental Insurance Company ("Continental"), National Union, and a few other carriers that are now insolvent. With the exception of the Continental policy, which contained unique provisions reducing its exposure, all of the primary policies issued to Rust or its corporate parents contained substantially similar language and were functionally equivalent. Under the policies, the insurers promised to pay all sums Rust is legally obligated to pay as damages because of bodily injury caused by an occurrence during the policy period.

{¶ 5} Rust filed a complaint for declaratory judgment against Hartford, Wausau, Travelers, Continental, National Union, and certain excess carriers in September 2007, seeking coverage for the thousands of underlying asbestos-related bodily injury claims. The primary insurance carriers filed cross-claims against each other for contribution. By stipulation of the parties, the trial court stayed the cross-claims pending adjudication of Rust's claims against the insurers.

{¶ 6} In 2010, Rust filed a motion for summary judgment against four of the five insurers, seeking a declaration on the trigger of coverage to be applied in determining coverage under successive insurance policies, the allocation methodology to be used, and that the insurers breached their duty to defend Rust. Rust did not move for summary judgment against National Union because the policies it issued to Rust were subject to certain indemnity agreements that required Rust to repay any money that National Union either pays or "shall become liable to pay" under its insurance policies.

{¶ 7} The trial court ruled that the Hartford, Travelers, Continental, and Wausau policies provided coverage for the asbestos-related bodily injury claims brought against Rust, and the parties were left to determine the amounts each insurer was required to contribute to the aggregate cost of those claims. Hartford, Wausau, Travelers, and Continental ("the Contribution Plaintiffs") ultimately entered into a settlement agreement with Rust (the "2012 settlement agreement"). The Contribution Plaintiffs agreed to pay over $35 million to cover Rust's unreimbursed costs that were incurred before January 1, 2012, and to pay a certain percentage of Rust's future costs for asbestos-bodily-injury claims up to a capped limit according to the following percentages:

Hartford 31.41 percent
Wausau 35.98 percent
Travelers 15.98 percent
Continental 6.63 percent

In exchange for compensation, Rust dismissed any and all claims against Hartford, Wausau, Travelers, and Continental, including bad faith claims.

{¶ 8} After reaching a settlement with Hartford, Wausau, Travelers, and Continental, Rust dismissed its claims against National Union without prejudice. Nevertheless, Wausau, Hartford, Travelers, and Continental continued to litigate their cross-claims for equitable contribution against National Union, and the parties later filed cross-motions for summary judgment on the issue. The trial court denied the motions and scheduled a bench trial.

{¶ 9} In the meanwhile, Continental settled its equitable contribution claims against National Union. Travelers also settled many of its claims against National Union, but remained in the case with respect to costs incurred after January 1, 2017. Consequently, only the equitable contribution claims of Hartford and Wausau (collectively "appellees") against National Union and the remaining claims of Travelers were subject to the bench trial. Ultimately, the trial court determined National Union's share of liability for the underlying asbestos claims brought against Rust according to the percentages used in the Contribution Plaintiffs' 2012 settlement agreement. Specifically, the trial court determined that National Union's share of the liability was equal to that of Travelers because they each provided two years of coverage during a similar period of time in the 1980s. National Union now appeals this determination.

II. Law and Analysis

{¶ 10} In this appeal, we are asked to decide whether the trial court properly determined National Union's share of the liability for Rust's underlying bodily injury claims. Thus, we are reviewing the propriety of the trial court judgment against National Union on appellees' equitable contribution claims.

{¶ 11} Contribution is an insurer's right to recover amounts paid in excess of its fair share of an obligation shared by other insurers. Travelers Indem. Co. v. Trowbridge , 41 Ohio St.2d 11, 321 N.E.2d 787 (1975), paragraph two of the syllabus, overruled on other grounds, Motorists Mut. Ins. Co. v. Huron Rd. Hosp. , 73 Ohio St.3d 391, 653 N.E.2d 235 (1995). It is an equitable doctrine that " 'rests upon the broad principle of justice, that where one has discharged a debt or obligation which others were equally bound with him to discharge, and thus removed a common burden, the others who have received a benefit ought in conscience to refund to him a ratable portion.' " Pennsylvania Gen. Ins. Co. v. Park-Ohio Industries Inc. , 179 Ohio App.3d 385, 2008-Ohio-5991, 902 N.E.2d 53, ¶ 21 (8th Dist.), quoting Baltimore & Ohio R.R. Co. v. Walker , 45 Ohio St. 577, 588, 16 N.E. 475 (1888).

{¶ 12} We apply the doctrine of contribution liberally since it is based on broad principles of equity. Id. A trial court's application of equitable principles is discretionary and dependent upon the facts of the case. KeyBank, N.A. v. MRN L.P. , 193 Ohio App.3d 424, 2011-Ohio-1934, 952 N.E.2d 532, ¶ 32 (8th Dist.). We therefore will not disturb a trial court's exercise of its equity discretion absent an abuse of discretion. Id. at ¶ 44.

{¶ 13} An abuse of discretion implies a decision that is unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid , 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 13. An abuse of discretion may also be found when the trial court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

A. Standard for Determining Shares of Contribution

{¶ 14} In the first assignment of error, National Union argues the trial court erred when it based its amount of contribution on percentages outlined in the 2012 settlement agreement between Rust and the Contribution Plaintiffs. National Union contends the court should have applied a pro rata, time-on-risk standard for determining its share of the liability instead of the contractual percentages in the 2012 settlement agreement.

{¶ 15} There are two accepted methods for allocating coverage among multiple insurers. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co. , 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 6. In Goodyear , the Ohio Supreme Court was asked to decide whether Ohio law requires the use of the "all-sums" approach (joint and several liability) or the pro rata approach (time-on-risk) when allocating insurance coverage for progressive injuries among multiple insurers. The all-sums approach allows the insured "to seek full coverage for its claims from any single policy, up to that policy's coverage limits, out of the group of policies that has been triggered." Id. at ¶ 6. The insured selects one insurer (the "targeted insurer") from which it may obtain a defense and indemnification up to the insurer's policy limits. Pennsylvania Gen. Ins. Co. at ¶ 11. The targeted insurer then has the right to seek contribution from the other insurers (the "nontargeted insurers"). Id.

{¶ 16} In contrast to the "all-sums" approach, the pro rata approach to allocation requires an insurer to pay "only a portion of a claim based on the duration of the occurrence during its policy period in relation to the entire duration of the occurrence." Id. Under this formula, liability is proportionally allocated to each insurer according to the time each was on the risk. See, e.g., Domtar, Inc. v. Niagara Fire Ins. Co. , 563 N.W.2d 724, 732 (Minn.1997).

{¶ 17} The Ohio Supreme Court adopted the "all-sums" approach rather than the pro rata approach to the allocation of insurance coverage in Ohio. Goodyear at ¶ 11. In Goodyear , the court reasoned that since the insured expected complete security from each policy it purchased, "the insured is entitled to secure coverage from a single policy of its choice that covers 'all sums' incurred as damages 'during the policy period,' subject to that policy's limits of coverage." Id. Consequently, the targeted insurer(s) rather than the insured bears the burden of obtaining contribution from other applicable primary insurance carriers. Id. The court explained that the "all-sums" approach "promotes economy for the insured while still permitting insurers to seek contribution from other responsible parties when possible." Id.

{¶ 18} A court does not determine the extent of the targeted insurer's right of contribution from another insurer pursuant to any "fixed rule." Pennsylvania Gen. , 179 Ohio App.3d 385, 2008-Ohio-5991, 902 N.E.2d 53, at ¶ 21, citing Tiffin v. Shawhan , 43 Ohio St. 178, 1 N.E. 581 (1885), paragraph one of the syllabus. While the amount of contribution is "usually proportionate," the actual award will depend on the particular facts and equitable considerations of the case. Id. Therefore, because Ohio applies the "all sums" approach for allocating insurance coverage, the trial court was not required to apply a strict pro rata, time-on-risk standard for apportioning National Union's share of the coverage liability.

{¶ 19} The trial court based National Union's share of liability on the same share allocated to Travelers in the 2012 settlement agreement. National Union argues the trial court abused its discretion by arbitrarily imposing on it the amount Travelers agreed to pay in the settlement agreement because National Union was not a party to the settlement agreement and therefore did not have an opportunity to negotiate its share. National Union also contends that Travelers agreed to pay more than its fair share in the 2012 settlement agreement in order to obtain a release of Rust's bad faith claims against it. Therefore, National Union asserts, the amount Travelers agreed to pay bears no relationship to any known pro rata methodology and should not have been imposed on National Union.

{¶ 20} National Union further argues that even though Ohio utilizes the "all sums" approach to allocating contribution, the trial court should have determined its share of the liability according to a strict pro rata, time-on-risk standard or methodology. It claims its share of liability should be based solely on the total amount of time its policies provided coverage in relation to the total amount of time provided by all the primary policies.

{¶ 21} Hartford and Wausau assumed a significantly larger period of time on the risk than the other three carriers. Hartford issued 14 policies between 1941 and 1962 for a total of 15 years of coverage, and Wausau issued 7 policies between 1962 and 1972 for a total of nine years coverage. Continental only issued one primary policy to Rust's corporate parent between 1983 and 1986, for a total of three years of coverage. And, as previously stated, the Continental policy contained some unique provisions that limited its exposure. Travelers issued two policies between 1981 and 1983 for a total of two years of coverage. Like Travelers, National Union only issued two policies that provided two years of coverage between 1986 and 1988. Therefore, National Union argues, the trial court should have determined its share of the liability according to a strict mathematical calculation based on its time on the risk.

{¶ 22} However, such strict time-on-risk calculations do not take into consideration when the coverage was "triggered" and thus are not the most equitable method for allocating liability for asbestos-related bodily injury claims in all cases. The trial court adopted the "continuous trigger" theory for determining when coverage is "triggered" under the relevant insurance policies in its 2012 ruling on Rust's motion to partial summary judgment. (Order and Opinion Granting Plaintiffs' Motion for Summary Judgment on Issues of Trigger and Scope of Coverage dated Feb. 2, 2012.)

{¶ 23} According to the "continuous trigger" theory, each and every policy in effect "(1) at the time of initial exposure, (2) during any subsequent period of continuing exposure, or (3) at the time of the physical manifestation of the harm or damage would be forced to respond" to the claim for coverage. Gregory A. Goodman, Note: Insurance Triggers as Judicial Gatekeepers in Toxic Mold Litigation , 57 Vand.L.Rev. 241, 267 (2004). Thus, as the trial court found, exposure to asbestos triggers every policy in effect from the date of first exposure until the end of the "coverage block." (Order and Opinion Granting Plaintiffs' Motion for Summary Judgment on Issues of Trigger and Scope of Coverage dated Feb. 2, 2012 at 18-21.)

{¶ 24} Many of the over 71,000 asbestos claimants alleged no exposure until the 1960s or 1970s. Therefore, these claims did not trigger the earlier policies issued by Hartford and Wausau. A policy is triggered by a claimant's date of first exposure ("DOFE"). Because asbestos claims involve "continuous injury," virtually all the claims trigger the later policies. Consequently, not all policies have the same exposure; the earlier policies are less exposed than later policies. Although Hartford issued the largest number of policies over the longest period of years, it issued its policies between 1941 and 1962. Therefore, its exposure to claims relative to its time-on-risk is less than the exposure of later policies that accumulated all the claims that were triggered earlier.

{¶ 25} The trial court recognized that the parties' settlement agreement considered these factors:

The Defending Insurers and Rust did not agree to a straight pro rata allocation in the Settlement Agreement. Rather, the Defending Insurers and Rust agreed to percentages for the Defending Insurers that reflect: the Defending Insurers' policies, the time periods each insurer insured Rust, and the fact that the average DOFE continues to move later in time (commonly called the "march forward" effect) because the population of claimants with first exposure in earlier years is diminishing over time. Day 1 [4/25/17] Tr. at 64:9-65:23. To account for these factors, the Defending Insurers and Rust agreed that the Defending Insurers with policies in the earlier years would pay a smaller share and that the Defending Insurers with policies in later years would pay a larger share. * * * The Court finds that the settlement agreement is more representative of real-world circumstances than a pure pro-rata-by-time-on-risk allocation.

(Aug. 23, 2017 Judgment Entry at ¶ 126.)

{¶ 26} As previously stated, National Union argues the trial court erred in determining that National Union's fair share is the same as the share Travelers agreed to pay under the 2012 settlement agreement. National Union also argues the trial court "effectively forced National Union to become a party to a settlement agreement without National Union's consent." However, National Union has not been made a party to the settlement agreement since it has no rights or liabilities under the agreement, which it can neither breach nor enforce. Rather, the trial court adopted the reasoning applied by the parties to the settlement agreement in reaching the percentages of contribution owed by each insurer.

{¶ 27} Indeed, National Union's exposure was comparable to Travelers' exposure. As previously stated, their policies contained substantially similar language and were functionally the same. Travelers and National Union were similarly situated because they each issued two years of coverage in the 1980s. The only difference between the policies is that Travelers provided coverage from 1981 to 1983, and National Union provided coverage from 1986 to 1988. And since asbestos-related claims trigger later policies more than earlier policies, the National Union policies had at least equal, if not greater, exposure than the Travelers policies. Therefore, the trial court's decision to equate the Travelers policies with the National Union policies was reasonable under the circumstances.

{¶ 28} National Union nevertheless argues that Travelers paid more than its fair share in order to obtain certain benefits, including a release of Rust's bad faith claims against it. Thus, National Union disputes the trial court's factual finding that National Union's exposure was substantially similar to Travelers' exposure. However, as previously stated, Travelers and National Union each issued two policies providing coverage for two years during the 1980s. Therefore, their positions are similar, except for the fact that National Union's policies were issued after the Travelers' policies.

{¶ 29} Furthermore, National Union's claim that Travelers agreed to pay more than its fair share in order to obtain certain benefits is purely speculative. There is no evidence that Travelers paid more than it owed under its policies. And as the trial court observed, the purpose of the settlement agreement was not to change how much any insurer was obligated to pay, "but to streamline the claims-paying process so that the Defending Insurers could pay a fixed amount of total costs rather than calculate the share it would owe on a claim-by-claim basis for each of the more than 70,000 Asbestos suits individually." (Aug. 23, 2017 Judgment Entry at ¶ 50.)

{¶ 30} Because determining the actual shares of liability on a claim-by-claim basis would be time consuming and expensive, the 2012 settlement agreement was a cost-effective solution for everyone. Based on the evidence adduced at trial, the trial court found that the 2012 settlement agreement was negotiated in good faith and at arm's-length. And since National Union's position was substantially similar to Travelers, it was reasonable for the trial court to conclude that National Union's share of liability was the same as Travelers.

{¶ 31} Accordingly, the first assignment of error is overruled.

B. Joint Claims

{¶ 32} In the second assignment of error, National Union argues the trial court erred in concluding that Hartford was entitled to equitable contribution even though Hartford failed to prove that it paid more than its fair share. It claims that Hartford's equitable contribution claim against National Union is barred because Hartford only paid 31.41 percent of the liability, and its pro rata time-on-risk share is 49 percent.

{¶ 33} In the third assignment of error, National Union argues the trial court erred in ruling that it owed equitable contribution to Hartford and Wausau jointly, instead of determining the amount of damages individually based on the amount that each insurer paid in excess of its fair share. National Union further asserts that although Wausau overpaid its share of the liability, National Union should not be responsible for the full amount of Wausau's overpayment because National Union only owes a small percentage under an individualized pro rata calculation.

{¶ 34} In both the second and third assigned errors, National Union argues the trial court's judgment should be reversed because it failed to determine Hartford and Wausau's shares of liability individually based upon the amount each insurer paid in excess of its fair share. By the same token, National Union asserts the trial court's judgment should be reversed because it erroneously allowed Hartford and Wausau to seek contribution from National Union jointly, rather than individually.

{¶ 35} The trial court found that Hartford and Wausau, together, paid more than their collective fair share. This conclusion is reasonable since National Union contributed nothing toward its share of the liability and has therefore paid less than its fair share. And since Hartford and Wausau collectively paid more than their fair share, the court concluded they could jointly seek contribution from National Union to pay its fair share.

{¶ 36} Whether two or more insurers may jointly seek contribution from another insurer is not established in case law. Just as there are no cases expressly authorizing joint prosecution of equitable contribution claims, there are no cases prohibiting them. Virtually all cases involving equitable contribution among insurers concern a single insurer that paid a claim and sought contribution from one or more nonpaying insurers. See, e.g. , Pennsylvania Gen. , 179 Ohio App.3d 385, 2008-Ohio-5991, 902 N.E.2d 53.

{¶ 37} Nevertheless, Ohio law allows plaintiffs to pursue claims jointly, and joint awards have been granted. For example, in Sivit v. Village Green of Beachwood, L.P. , 2016-Ohio-2940, 65 N.E.3d 163 (8th Dist.), insurers and tenants of an apartment complex damaged in a fire sued a property management company alleging its negligence caused the fire. The ten plaintiffs sought compensatory and punitive damages. After awarding compensatory damages in a bifurcated trial, the jury awarded the plaintiffs a lump sum of $2,000,000 in punitive damages. Id. at ¶ 7. Although the award gave rise to complications under the punitive damages statute that are not relevant here, the case illustrates that plaintiffs as a group may seek and obtain damages in a lump sum. Moreover, the court in Sivit observed:

The [plaintiffs] do not dispute that the individual plaintiffs could have entered into an agreement specifying how any punitive damages award they received was to be allocated among them, and that, if such an agreement had been made, the trial court could have enforced that agreement and ordered the allocation and distribution of the punitive damages award consistent with that agreement.

Id. at ¶ 43.

{¶ 38} The trial court in this case made a similar observation:

The Contribution Insurers are seeking contribution together - that is, they are jointly seeking to compel National Union to pay its fair share. They are not asking the Court to allocate National Union's contribution between them, and the Court sees no reason to intrude unasked into their relations.

(Aug. 23, 2017 Judgment Entry at ¶ 115.) Since there is no law prohibiting the court from allowing multiple insurers from jointly prosecuting a combined equitable contribution claim, we find no error in the court's decision to allow Hartford and Wausau to jointly seek contribution from National Union.

{¶ 39} National Union nevertheless argues the trial court's judgment should be reversed because Hartford failed to prove that it paid more than its fair share and is therefore not entitled to any contribution. However, National Union does not dispute that Hartford and Wausau collectively overpaid their share of the liability. Indeed, National Union suggests that Wausau likely overpaid its share. Yet National Union has not contributed anything toward its share of the liability. Therefore, National Union cannot deny that it has not paid its fair share. And since Hartford and Wausau may prosecute contribution from National Union jointly, their collective share is relevant, and Hartford's individual share is not.

{¶ 40} Moreover, allowing Hartford and Wausau to assert their claim jointly did not prejudice National Union. As previously stated, the trial court reasonably determined the amount of National Union's share of the collective liability according to the amount Travelers agreed to pay under the 2012 settlement agreement because the two carriers were similarly situated.

{¶ 41} National Union would like us to remand the case to the trial court for a strict pro rata calculation of each insurer's share of liability. However, as previously stated, equity does not require the strict application of any fixed rule. Pennsylvania Gen. , 179 Ohio App.3d 385, 2008-Ohio-5991, 902 N.E.2d 53, at ¶ 21, citing Shawhan , 43 Ohio St. 178, 1 N.E. 581, paragraph one of the syllabus. Rather, equity gives the court flexibility to reach a just result depending upon the facts and circumstances of each case. Id. Furthermore, we will not disturb a trial court's exercise of its equity discretion absent an abuse of discretion. KeyBank , 193 Ohio App.3d 424, 2011-Ohio-1934, 952 N.E.2d 532, ¶ 44. We find no abuse of discretion in the trial court's decision to allow Hartford and Wausau to jointly prosecute their equitable contribution claims against National Union.

{¶ 42} The second and third assignments of error are overruled.

C. Prejudgment Interest

{¶ 43} In the fourth assignment of error, National Union argues the trial court erred in awarding an undefined amount of "interest" for past defense and indemnity costs. National Union concedes that if the order to pay interest refers to postjudgment interest, then the order is not reversible because R.C. 1343.03 provides for the accrual of postjudgment interest on a final judgment that has been awarded on any claim. If, however, the order to pay interest refers to prejudgment interest, then the award of interest is reversible error because neither Hartford nor Wausau are entitled to prejudgment interest since the trial court never made a determination as to when any amount of National Union's contribution became due and payable.

{¶ 44} The trial court's judgment states, in relevant part:

Accordingly, for past costs incurred in the defense and indemnity of Asbestos Suits through November 2016, National Union is ordered to pay Hartford and Wausau 13.57 percent of $25,957,713.80 or $3,522,461.76 plus interest.

Notably, the trial court's judgment does not mention the word "prejudgment interest"; it simply orders "interest." We also note that neither Hartford nor Wausau filed a motion asking for prejudgment interest.

{¶ 45} Prejudgment interest is a creature of statute and is only awarded in certain cases. For example, R.C. 2743.18 authorizes an award of prejudgment interest in cases involving state liability. R.C. 1343.03 authorizes an award of prejudgment interest for breach of contract and in tort cases where a defendant fails to negotiate in good faith. Since it is undisputed that National Union was not a party to any contract with either Hartford or Wausau, R.C. 1343.03(A), which authorizes prejudgment interest for breach of contract, is inapplicable. And even if there were contractual liability, the court could not legally award prejudgment interest without determining the date on which the interest was to run, which is based on when National Union's share of the contribution became due and payable. R.C. 1343.03(A) ; Gates v. Praul , 10th Dist. Franklin No. 10AP-784, 2011-Ohio-6230, 2011 WL 6036397, ¶ 61.

{¶ 46} An argument could be made that National Union should pay prejudgment interest under R.C. 1343.03(C) because it failed to negotiate a settlement in good faith. It could also be argued that R.C. 1343.03(C), which applies to judgments awarded for damages caused by tortious conduct, is inapplicable because Hartford and Wausau's claims are based in equity rather than tort. But even if Hartford and Wausau could seek prejudgment interest under R.C. 1343.03(C), the trial court would have had to make certain factual findings before it could award prejudgment interest, such as the applicable interest rate and the date on which the prejudgment interest was to be calculated. Moreover, the court would have had to find that National Union failed to negotiate in good faith. R.C. 1343.03(C)(1).

{¶ 47} As previously stated, the trial court's judgment simply awards a specified amount of damages "plus interest." The judgment entry does not provide any indication that the trial court intended to award prejudgment interest and the court made none of the required findings to sustain an award of prejudgment interest. The judgment entry therefore provides for postjudgment interest rather than prejudgment interest.

{¶ 48} Accordingly, the fourth assignment of error is overruled.

{¶ 49} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR


source: Caselaw Access Project

author: MAYLE, P.J.

license: Public Domain

text:
    STATE of Ohio/CITY OF TOLEDO, Appellee v. Johnny L. REESE, Sr., Appellant
    No. L-17-1132
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: July 27, 2018
    David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.
    Eric Allen Marks, Toledo, for appellant.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Appellant, Johnny Reese, Sr., appeals the June 6, 2017 judgment of the Toledo Municipal Court sentencing him for a misdemeanor conviction of operating a vehicle under the influence of alcohol ("OVI"). For the following reasons, we affirm.

I. Background and Facts

{¶ 2} After a traffic stop on July 24, 2016, Reese was arrested and charged with operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor, and speeding in violation of R.C. 4511.21(A), a minor misdemeanor. On December 19, 2016, he filed a motion to suppress the evidence obtained from the stop, claiming that the arresting officer lacked reasonable suspicion to initiate a traffic stop and impermissibly prolonged the stop. On May 23, 2017, the trial court held a hearing on the motion to suppress.

{¶ 3} The only witness at the hearing was Ohio State Highway Patrol trooper Casimir Vonsacken, the arresting officer. Vonsacken testified that he was patrolling on the east side of Toledo on July 24, 2016. At approximately 2:40 a.m., while Vonsacken was stopped at the light at the intersection of Front Street and the on-ramp to northbound Interstate 280, he saw a blue pickup truck "come up, slow and kind of just roll through the red light * * *." At that point, Vonsacken decided to "follow the vehicle and see what possible driving behaviors the vehicle would display."

{¶ 4} While on the ramp, Vonsacken said that the truck did "not flow smooth through the turn and at points you could see it start to drift out almost to cross the line. But then there'd be a correction, and it wouldn't be like a gradual correction, it would be kind of a sharp correction * * *." After the truck was on the interstate, Vonsacken said that "it appeared that the vehicle kind of accelerated to above the posted speed limit * * *." The speed limit changed to 50 m.p.h. where a construction zone began, at which point Vonsacken said that he was pacing the truck at 65 m.p.h. He explained that pacing a vehicle requires him to travel at a fixed distance behind the vehicle and then check his cruiser's radar to see the speed of the cruiser. Vonsacken initiated a traffic stop shortly after the vehicle entered the construction zone.

{¶ 5} The city offered into evidence the dash cam video from Vonsacken's cruiser. Vonsacken testified that the recording system in his cruiser begins recording video and audio when he activates his lights. The system also saves video footage beginning one minute or one minute and one-half before the lights were activated.

{¶ 6} The video in Reese's case does not show the failure to yield violation that Vonsacken witnessed. Vonsacken activated his lights more than one minute or one minute and one-half after he saw Reese fail to yield at the red light, so there is no footage from when that violation occurred. According to Vonsacken, even if the system had saved the footage from that time, the violation would not appear on the video "due to the angles," i.e., because Vonsacken's cruiser was parallel to Reese's truck and the dash cam is oriented toward the front of the cruiser. Nor does the video show the truck drifting in its lane while on the on-ramp or any "sharp" corrections. Vonsacken explained this discrepancy by saying that dash cam videos "definitely aren't as clear as my vision; in addition, a one-dimensional picture versus a three-dimensional picture." The only drifting that Vonsacken identified in the video was when Reese "went left and brought it back" as he was leaving the on-ramp. Reese then appears to slightly correct back toward the center of his lane. Reese's left turn signal was on and he was preparing to merge onto the interstate at the time of the drifting. Vonsacken also testified that the dash cam video did not display the speed at which he was traveling.

{¶ 7} Following Vonsacken's testimony and counsel's closing arguments, the trial court denied Reese's motion to suppress. It found that Vonsacken's testimony that the truck drifted in its lane of travel did not provide probable cause for the stop, but that Vonsacken had probable cause to stop Reese nonetheless because Vonsacken witnessed Reese fail to yield at the red light and drive at 65 m.p.h. in a 50 m.p.h. zone. The court noted that "the fact that the video doesn't show the red light violation that was testified to by the trooper doesn't mean it didn't happen. And the fact that the video doesn't show a speed * * * doesn't mean it didn't happen either."

{¶ 8} The case immediately proceeded to a bench trial. Again, Vonsacken was the city's only witness. He testified that at approximately 2:40 a.m. on July 24, 2016, while sitting at a red light, he saw a vehicle that failed to come to a complete stop at the light. He followed the vehicle onto northbound Interstate 280, where he activated his lights and initiated a traffic stop. Vonsacken said that the driver pulled off next to the concrete barrier in the center of the interstate and came to a stop, but then "rolled forward a little bit" before finally stopping. Before exiting his cruiser, Vonsacken noticed the driver of the truck "reaching around and moving in the cabin more than what I would say an average driver would do."

{¶ 9} When Vonsacken approached the truck, he saw that the driver-whom he identified at trial as Reese-had glassy, bloodshot eyes and he smelled the odor of an alcoholic beverage coming from inside the truck. When Vonsacken asked Reese if he had been drinking, Reese denied consuming any alcohol that night. Reese provided Vonsacken with his license, which Vonsacken confirmed was valid. He asked Reese to exit the truck. Reese eventually did so, but Vonsacken had to ask several times; Reese took a phone call, attempted to drink from a water bottle, and started to roll up his window and lock his door before getting out of the truck. Vonsacken described Reese as moving in "a slow and sluggish demeanor." He conceded that he had not met Reese before the traffic stop and that Reese might normally demonstrate a "slow demeanor." Because Reese was moving around a lot in the truck and was not responding to Vonsacken's requests as quickly as Vonsacken wanted him to, Vonsacken called for backup.

{¶ 10} Once Reese was out of the truck, Vonsacken attempted to pat him down. Vonsacken testified that Reese either did not understand his instructions or intentionally failed to follow them, and Vonsacken had to repeat things on "several occasions." Vonsacken placed Reese in the back seat of the cruiser while he waited for backup. Once they were in the cruiser, Vonsacken could smell alcohol on Reese.

{¶ 11} After the backup arrived, Vonsacken took Reese out of the cruiser and attempted to administer standardized field sobriety tests. Vonsacken administered the horizontal gaze nystagmus test and noticed six out of six clues, which indicated to Vonsacken that Reese had consumed enough alcohol to affect the muscles in his eyes. Vonsacken also asked Reese to recite the alphabet beginning at the letter C and stopping at the letter X. Reese tried twice, but stopped at the letter I both times. Vonsacken asked Reese to do the walk-and-turn test, but Reese engaged in a "debate" with Vonsacken instead of attempting the test.

{¶ 12} Because of the amount of time that they had been standing on the side of the interstate and because Vonsacken did not believe that Reese was going to attempt the field sobriety tests, he arrested Reese. The troopers at the scene searched Reese's truck after arresting him. They found a partially-empty beer bottle underneath the back seat and a partially-empty flask in the center console. Vonsacken said that Reese never admitted to consuming alcohol on the night of his arrest. Vonsacken also testified that he asked Reese to take another test after they arrived at the Lucas County jail, but he did not say what the test was. Reese refused.

{¶ 13} After hearing the testimony and evidence, the trial court found Reese guilty of OVI and not guilty of speeding. It then proceeded directly to sentencing. During the sentencing, the city noted that Reese had two prior OVI charges that were reduced, but it did not object to the minimum sentence in this case. Reese and his attorney had the following exchange with the court prior to the court imposing sentence:

[DEFENSE COUNSEL]: Judge, I would just ask for the Court to impose the minimum mandatory-minimum mandatory sentence at this time, allow him to serve those three days in a driver's intervention program. As you've heard throughout the duration of this case, as well as on the video, my client is a commercial driver's license holder, was a commercial driver's license holder, gainfully employed, a minister in his church. So I would ask for the Court to impose the mandatory minimum at this time.
THE COURT: Is he engaged in any alcohol treatment?
[DEFENSE COUNSEL]: Not at this time.
THE COURT: Have you been in the past?
THE DEFENDANT: No.
THE COURT: Okay. Do you need to be?
THE DEFENDANT: No.
THE COURT: Mr. Reese, you're going to kill somebody. Somebody is going to die because you have an alcohol problem and you don't want to do anything but engage in a debate. Somebody is going to die. You do not acknowledge that there is a problem. This is the third alcohol conviction. I don't really care that the other ones were convicted of DUIs or something less. What I care about is my two children and my wife drive on the same roads you're driving around on drunk. I am not going to let you kill somebody. It's not going to happen on my watch.
THE DEFENDANT: I'm not going to kill anybody, Your Honor.
THE COURT: Yes you are. You are not taking this seriously. That is more frightening than anything. * * *.

The trial court imposed a sentence of 180 days in jail with 177 days suspended and the remaining three days to be served in a driver's intervention program; a fine of $850, which the court noted was the fine prescribed for a third OVI offense; a six-month license suspension from the date of the offense; one year of active probation with the conditions that Reese not consume alcohol and follow any recommendations resulting from a substance abuse assessment; and 100 days of electronic alcohol monitoring.

{¶ 14} Reese appeals his conviction, raising three assignments of error:

FIRST ASSIGNMENT OF ERROR[:] THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS.
SECOND ASSIGNMENT OF ERROR[:] IT CONSTITUTED PLAIN ERROR AND PROSECUTORIAL MISCONDUCT WHEN THE CITY OFFERED ITS PERSONAL OPINION IN CLOSING STATEMENTS AS TO APPELLANT'S GUILT.
THIRD ASSIGNMENT OF ERROR[:] THE TRIAL COURT FAILED TO ADDRESS APPELLANT PERSONALLY AND ASK IF HE WISHED TO MAKE A STATEMENT OR PRESENT ANY MITIGATING INFORMATION TO THE COURT PRIOR TO SENTENCING.

II. Law and Analysis

A. The Trial Court Properly Denied the Motion to Suppress

{¶ 15} In his first assignment of error, Reese argues that Vonsacken lacked probable cause to stop him and lacked reasonable suspicion to administer field sobriety tests. He contends that the trial court's findings of fact are against the manifest weight of the evidence because neither Reese's failure to yield at a red light nor his excessive speed are seen on the dash cam video and Vonsacken's testimony regarding both violations is not credible. He points to an alleged discrepancy between Vonsacken's testimony and the video to support his argument that we should discredit all of Vonsacken's testimony. He also argues that Vonsacken's testimony was insufficient to support a finding that Vonsacken had the reasonable, articulable suspicion necessary to administer field sobriety tests. The city counters that the trial court properly assessed Vonsacken's credibility and appropriately weighed the evidence. It also argues that Reese forfeited any error regarding the field sobriety tests because he did not object when the trial court and the city said at the suppression hearing that the only disputed issue was the constitutionality of the traffic stop.

{¶ 16} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact at a suppression hearing by weighing the evidence and determining the credibility of the witnesses. Although we must accept any findings of fact that are supported by competent, credible evidence, we conduct a de novo review to determine whether the facts satisfy the applicable legal standard, and this independent review is done without deference to the trial court. State v. Codeluppi , 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing Burnside at ¶ 8 ; State v. Jones-Bateman , 6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, 2013 WL 5771173, ¶ 9.

1. Probable Cause Supported the Traffic Stop

{¶ 17} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution prohibit unreasonable searches and seizures. This includes unreasonable automobile stops. Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Nonetheless, a traffic stop is constitutionally reasonable when the officer making the stop has probable cause to believe that a traffic violation has occurred. Bowling Green v. Godwin , 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 11 ; Dayton v. Erickson , 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. "Probable cause exists when there are facts and circumstances within the police officer's knowledge that are sufficient to warrant a reasonable belief that the suspect is committing or has committed an offense." State v. Steele , 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 26, citing Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

{¶ 18} Reese's argument that the stop was unconstitutional rests entirely on Vonsacken's credibility. He claims that the trial court should have discounted all of Vonsacken's testimony because the video contradicts his testimony that Reese was drifting in his lane of travel and making "sharp corrections." Because the video shows a discrepancy, Reese argues, all of Vonsacken's testimony-including his testimony that he witnessed two traffic violations that do not appear on the video-is unreliable. To support his position, he cites to City of Middleburg Heights v. Wojciechowski , 8th Dist. Cuyahoga No. 102216, 2015-Ohio-3879, 2015 WL 5608230, and City of Cleveland v. Shevchenko , 8th Dist. Cuyahoga No. 104083, 2016-Ohio-5711, 2016 WL 4701548. These cases are distinguishable.

{¶ 19} In both cases, the Eighth District Court of Appeals reversed the trial court's denial of a motion to suppress because the arresting officer's testimony was inconsistent with the video offered into evidence. In Wojciechowski , the officer testified that the defendant committed several marked lanes violations and pointed to the places in the video where the defendant allegedly crossed a lane line. The Eighth District concluded after reviewing the video that "[t]he video contradicts [the officer's] testimony when he points to specific places in the video where he declares Wojciechowski crossed over the lane line, when it is clear to us that Wojciechowski never crossed a single line." Wojciechowski at ¶ 17. The officer also testified to a marked lanes violation that was not captured on the video because the officer was beside the defendant's truck at the time. The appellate court found that the unrecorded violation could not support the trial court's determination of probable cause because of issues with the officer's credibility:

If we had not previously observed inconsistencies between the video and [the officer's] testimony, we would have deferred to the trial court's factual findings and affirmed the trial court's judgment. However, ostensible discrepancies in the evidence compels [sic] us to find that the trial court's judgment is not supported by competent, credible evidence. Id. at ¶ 18.

{¶ 20} Similarly, in Shevchenko , the Eighth District found that the officer's testimony that the defendant's vehicle crossed a lane line was contradicted by the dash cam video. Shevchenko at ¶ 24. It also determined that an unrecorded improper lane change that the officer testified to did not provide probable cause to stop the defendant because the officer testified that the lane change "caught [his] attention" but did not trigger the traffic stop, and the defendant was not cited with the alleged marked lanes violation that the officer claimed gave him probable cause. Id. at ¶ 22-23. The court, quoting Wojciechowski , concluded that " 'ostensible discrepancies in the evidence compel us to find that the trial court's judgment is not supported by competent, credible evidence.' " Id. at ¶ 25.

{¶ 21} In this case, we do not see any "ostensible discrepancies" between Vonsacken's testimony and the video. The only possible discrepancy relates to Reese's driving while on the ramp to Interstate 280. We note that the trial court specifically found that the drifting could not be the probable cause for the traffic stop, and that Reese only cites to this testimony to question Vonsacken's credibility. Vonsacken testified that Reese was drifting in his lane and making "sharp corrections." The video shows one point where Reese "drifts" to the left side of the lane, which occurs shortly after he activates his left turn signal and prepares to merge left onto the interstate. Reese also appears to correct slightly, but the correction does not appear to be "sharp." Vonsacken explained the apparent inconsistency by saying that the camera "definitely [is not] as clear as my vision; in addition, a one-dimensional picture versus a three-dimensional picture." In our view, this minor inconsistency, when considered alongside Vonsacken's explanation, is not enough to require us or the trial court to completely discount Vonsacken's testimony. At worst, Vonsacken's characterization of the drifting and correcting is hyperbolic. The testimony neither rises to the level of inventing facts to support probable cause (as Reese seems to imply) nor undermines Vonsacken's credibility to the point that all of his testimony must be disregarded.

{¶ 22} Moreover, we disagree with the Eighth District's assessment that a traffic violation that merely "caught [the officer's] attention" cannot be the basis of probable cause for a traffic stop. See Wojciechowski , 8th Dist. Cuyahoga No. 102216, 2015-Ohio-3879, at ¶ 22-25. In fact, the city "does not have to charge a motorist with a traffic violation in order to use the facts of such a violation to support reasonable suspicion to initiate a traffic stop." State v. Messick , 5th Dist. Delaware No. 06CA090065, 2007-Ohio-1824, 2007 WL 1140086, ¶ 15. Thus, the trial court's finding that the failure to yield violation provided probable cause for Vonsacken to stop Reese is supported by some competent, credible evidence, even though the violation was not recorded and Vonsacken did not cite Reese with failure to yield.

{¶ 23} Further, Vonsacken testified that he also based the traffic stop on Reese's excessive speed. He said that the speed limit where Reese entered the interstate was 60 m.p.h., but it dropped to 50 m.p.h. where a construction zone began. He also said that he was pacing Reese's truck at approximately 65 m.p.h. when they entered the construction zone. Reese claims that Vonsacken's testimony does not support the trial court's findings because a speedometer reading is not included on the video. We disagree. Vonsacken testified that he was pacing the truck using his speed as measured by the radar in his cruiser and that he was traveling at approximately 65 m.p.h. when they entered the 50 m.p.h. zone. This is sufficient competent, credible evidence to support the trial court's determination, despite the video not displaying Vonsacken's speed. Because Vonsacken had probable cause to stop Reese, we find that the trial court did not err in denying the motion to suppress.

2. The Trial Court did not Commit Plain Error by Denying the Motion to Suppress

{¶ 24} Reese also argues that, assuming we find the initial traffic stop valid, the trial court erred in denying his motion to suppress because Vonsacken did not have the requisite reasonable suspicion that Reese was driving under the influence to justify detaining Reese for the purpose of administering field sobriety tests. The city argues that Reese forfeited this error by not raising it in the trial court and that the trial court did not commit plain error in denying the motion to suppress.

{¶ 25} We agree with the city that Reese forfeited this error. Although the prosecution has the burden of proof in suppression cases, the defendant has the burden of both demonstrating that a warrantless search or seizure occurred and adequately clarifying the grounds upon which he challenges the legality of the search or seizure. City of Xenia v. Wallace , 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph two of the syllabus. Because the defendant has the burden of raising any issues that might require suppression of evidence, he also has the burden of ensuring that the prosecution and the court address the issues he raises. That is, if the prosecution and the court have an incorrect understanding of the issues and the defense is aware of their mistake, "the defense ha[s] the obligation to correct the court so that the court and the prosecution [are] put on notice of the issues to be decided." State v. Byrnes , 2d Dist. Montgomery No. 25860, 2014-Ohio-1274, 2014 WL 1338787, ¶ 13.

{¶ 26} Here, Reese raised the issue of reasonable suspicion to conduct field sobriety tests in his motion to suppress. At the beginning of the suppression hearing, however, the prosecutor stated that the city's "understanding is that the Motion to Suppress covers the single issue of the stop. And that is all the City is going to address is the validity of the constitutionality of the stop." Reese's attorney did not object or attempt to correct the prosecutor's statement. Vonsacken's testimony during the suppression hearing related only to his reasons for making the traffic stop; he did not address his reasons for prolonging the stop and administering field sobriety tests. During cross-examination Reese's attorney did not ask Vonsacken any questions about the length of the stop or his reasons for administering field sobriety tests. At the conclusion of the hearing, the court stated, "My understanding is I'm being called upon only to determine whether there is probable cause for the stop; correct?" The prosecutor responded, "Correct." Again, Reese's attorney did not object or attempt to correct the prosecutor's statement. Nor did Reese's attorney argue about the length of the stop or the propriety of the field sobriety tests in his closing argument. Finally, consistent with its understanding of the issue before it, the trial court ruled only that Vonsacken had probable cause to stop Reese; it did not address whether Vonsacken had reasonable suspicion to prolong the stop and administer field sobriety tests. And again, counsel did not object or attempt to correct the court's understanding.

{¶ 27} Based on Reese's failure to correct the city and the court at the hearing-despite having several opportunities to do so-we find that he abandoned his argument about the length of the traffic stop and has forfeited the issue on appeal.

{¶ 28} When an appellant forfeits an issue we review only for plain error. State v. Reynolds , 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40, 2018 WL 304468, ¶ 28. Plain error is error that affects substantial rights. Crim.R. 52(B). In determining whether plain error occurred, we must examine the alleged error in light of all of the evidence properly admitted at trial. State v. Hill , 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Plain error should be found "only in exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. , citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error is not present unless the outcome of the trial would have been different but for the complained of error. State v. Gardner , 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 78.

{¶ 29} An officer who is conducting a valid traffic stop may prolong the stop to investigate the driver for OVI if the officer has a reasonable suspicion, based on specific and articulable facts, that the driver may be intoxicated. State v. Graff , 6th Dist. Lucas No. L-11-1307, 2013-Ohio-2242, 2013 WL 2404156, ¶ 15. Indicia of intoxication include, but are not limited to: the time of day; erratic driving that the officer observed before the stop; the driver having glassy, bloodshot eyes; the odor of alcohol coming from inside the vehicle; the potency of the odor of alcohol; the driver admitting to consuming alcohol; and the driver slurring his speech. Id. at ¶ 16 ; State v. Appelhans , 6th Dist. Wood No. WD-10-026, 2011-Ohio-487, 2011 WL 346302, ¶ 19, citing State v. Evans , 127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist. 1998). We look to the totality of the circumstances to determine whether an officer's request for field sobriety tests was reasonable. Graff at ¶ 15.

{¶ 30} At trial, Vonsacken testified that he encountered Reese's truck around 2:40 a.m. when he witnessed Reese "roll through" a red light and speed in a construction zone. He also said that he smelled alcohol coming from the cab of the truck while Reese was in it and noticed that Reese had glassy, bloodshot eyes. This is sufficient to show that Vonsacken had a reasonable suspicion, based on specific, articulable facts, to believe that Reese was driving while intoxicated. Because Vonsacken was justified in asking Reese to perform field sobriety tests, the trial court did not commit any error-let alone plain error-by denying Reese's motion to suppress. We find, therefore, that Reese's first assignment of error is not well-taken.

B. The Prosecutor's Statements in Closing Argument were not Prejudicial

{¶ 31} In his second assignment of error, Reese argues that the prosecutor's reference during closing argument to the prosecutor's personal opinion about Reese's intoxication constituted prosecutorial misconduct. He objects to the prosecutor's statements that "[Reese] approached the trooper in a way that I would say is unsteady on his feet" and "it sounded to me like an individual who had been drinking." (Emphasis added.) The city contends that, assuming the statements were improper, Reese does not make an affirmative showing that the trial court considered the statements in reaching its verdict, so Reese cannot show that the court erred.

{¶ 32} If a defendant fails to object to a prosecutor's comments at trial, we review the comments only for plain error. State v. Boaston , 6th Dist. Lucas, 2017-Ohio-8770, 100 N.E.3d 1002, ¶ 82. Prosecutorial misconduct rises to the level of plain error only if it is clear that the defendant would not have been convicted in the absence of the improper comments. State v. Griffin , 6th Dist. Lucas No. L-98-1215, 2000 WL 1713850, *2, 2000 Ohio App. LEXIS 5313, *5 (Nov. 17, 2000). In a bench trial, the trial court is presumed to consider only relevant, competent evidence in reaching its decision unless the appellant makes an affirmative showing to the contrary. State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 174, citing State v. Post , 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).

{¶ 33} When an appellant alleges that the prosecutor made improper statements during closing argument, we review the argument in its entirety to determine whether the remarks were prejudicial. State v. Patton , 6th Dist. Lucas No. L-12-1356, 2015-Ohio-1866, 2015 WL 2329173, ¶ 154, citing State v. Slagle , 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992), and State v. Moritz , 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). Generally, where a prosecutor's " 'personal opinions of guilt are predicated upon the evidence, though frowned upon, they are not deemed to be prejudicially erroneous.' " State v. Reynolds , 80 Ohio St.3d 670, 681, 687 N.E.2d 1358 (1998), quoting State v. Stephens , 24 Ohio St.2d 76, 83, 263 N.E.2d 773 (1970).

{¶ 34} Here, our review of the prosecutor's closing argument shows that his statements did not rise to the level of plain error. His statements that Reese "approached the trooper in a way that I would say is unsteady on his feet" and that "it sounded to me like an individual who had been drinking" were predicated upon Reese's speech and actions as demonstrated by the dash cam video that was admitted into evidence. Thus, "though frowned upon," these statements were not "prejudicially erroneous." Reynolds at 681, 687 N.E.2d 1358. Moreover, even assuming that the statements were prejudicial, Reese does not make an affirmative showing to overcome the presumption that the trial court considered only competent and relevant evidence in reaching its decision, and we cannot say that Reese would have been acquitted but for the prosecutor's statements. Accordingly, Reese's second assignment of error is not well-taken.

C. The Trial Court's Violation of Reese's Right of Allocution was Harmless

{¶ 35} In his final assignment of error, Reese contends that the trial court erred when it did not afford him the opportunity to speak before he was sentenced. The city contends that Reese engaged in a "meaningful discussion" with the court prior to sentencing. Although we agree that the trial court erred by failing to provide Reese an opportunity to speak before he was sentenced, we find that the error was harmless.

{¶ 36} Under Crim.R. 32(A)(1), at the time of sentencing, the court shall "[a]fford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment." A defendant has an absolute right of allocution because "[a] Crim.R. 32 inquiry is much more than an empty ritual: it represents a defendant's last opportunity to plead his case or express remorse." State v. Green , 90 Ohio St.3d 352, 358, 359-360, 738 N.E.2d 1208 (2000).

{¶ 37} The trial court has an affirmative duty under Crim.R. 32(A)(1) to directly, personally, and clearly ask the defendant if he wishes to exercise his right of allocution. State v. Campbell , 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000) ; Green at 359, 738 N.E.2d 1208, quoting Green v. United States , 365 U.S. 301, 305, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (" 'Trial judges before sentencing should * * * unambiguously address themselves to the defendant. * * * Judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.' "); State v. Harvey , 3d Dist. Allen No. 1-09-48, 2010-Ohio-1627, 2010 WL 1451490, ¶ 15 ("The requirement of allocution is considered fulfilled when the conduct of the court clearly indicates to the defendant that he has a right to make a statement prior to the imposition of sentence.").

{¶ 38} A trial court's failure to comply with Crim.R. 32(A)(1) is not always a prejudicial error, however; remand for resentencing is not required if the error is invited or harmless. Campbell at 326, 738 N.E.2d 1178. Invited error is an error that a party invited or induced the court to make. Davis v. Wolfe , 92 Ohio St.3d 549, 552, 751 N.E.2d 1051 (2001). There is no evidence that Reese or his counsel invited the error in this case.

{¶ 39} Harmless error is "[a]ny error, defect, irregularity, or variance which does not affect substantial rights * * *." Crim.R. 52(A). Although there are no bright-line rules for determining whether a violation of Crim.R. 32(A)(1) is harmless, some Ohio courts-including this one-have found harmless error when counsel speaks, even if the defendant is not given the opportunity to do so, and the defendant receives a minimal sentence or a statutorily-mandated sentence. See, e.g., State v. Everson , 6th Dist. Lucas No. L-17-1138, 2018-Ohio-323, 2018 WL 566482 (defendant's attorney spoke and the judge imposed a "fairly lenient" sentence); State v. Carr , 2d Dist. Montgomery No. 24438, 2012-Ohio-1850, 2012 WL 1484205 (at resentencing, defendant's attorney spoke and the judge was statutorily required to impose postrelease control); State v. Woods , 8th Dist. Cuyahoga No. 96487, 2011-Ohio-5825, 2011 WL 5506095 (at resentencing, defendant appeared before judge who originally sentenced him and heard his original allocution and postrelease control was statutorily required); State v. Reed , 10th Dist. Franklin No. 09AP-1164, 2010-Ohio-5819, 2010 WL 4884904 (defendant received the minimum sentence with no fine or costs and the court imposed mandatory postrelease control, so "[a]ny allocution by appellant could have had no positive effect on the results of the proceeding.");

State v. Bailey , 6th Dist. Ottawa No. OT-97-046, 1998 WL 603978 (Sept. 11, 1998) (counsel spoke at length on defendant's behalf and the court had a presentence investigation report that outlined mitigating factors); compare, e.g., State v. Mehanny , 6th Dist. Lucas No. L-15-1141, 2016-Ohio-2867, 2016 WL 2620803 (error was prejudicial when neither defendant nor his counsel was offered the opportunity to speak before the court imposed the sentence); State v. Jackson , 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, 2015 WL 3540599 (error was prejudicial when the court denied defendant's two requests to speak at sentencing, counsel was not allowed to speak, and defendant received the maximum sentence). Essentially, the less likely it is that the defendant's allocution would have affected the outcome of the case, the more likely the courts are to find that a Crim.R. 32(A)(1) violation was harmless.

{¶ 40} During Reese's sentencing hearing, the trial court did not ask Reese if he wanted to make a statement before it imposed sentence. The only dialogue between Reese and the judge was Reese responding to the court's questions about alcohol treatment and its accusation that Reese was "going to kill somebody." This does not constitute a direct and personal inquiry of Reese as required by Crim.R. 32(A)(1), but we nonetheless find that the trial court's error was harmless.

{¶ 41} Although the trial court did not inquire of Reese, it permitted his attorney to speak. Counsel explained the mitigating facts that the court should consider before sentencing Reese, including Reese holding a commercial driver's license, being gainfully employed, and being a minister in his church.

{¶ 42} Further, the court gave Reese a fairly lenient sentence. The maximum sentence for a first-degree misdemeanor violation of R.C. 4511.19(A) is 180 days incarceration, of which three consecutive days are mandatory; a $1,075 fine; and a 3-year license suspension. Although the trial court sentenced Reese to the maximum jail term, it suspended all but the mandatory three days, which it ordered Reese to serve in a driver's intervention program. The court also imposed a fine of $850 and a 6-month license suspension that began the date of the offense and expired prior to Reese's sentencing. Based on these facts, we conclude that the trial court's failure to allow Reese the opportunity for allocution did not prejudice him. Accordingly, his third assignment of error is not well-taken.

III. Conclusion

{¶ 43} Based on the foregoing, the June 6, 2017 judgment of the Toledo Municipal Court is affirmed. Reese is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Thomas J. Osowik, J.

James D. Jensen, J.

CONCUR.

      We presume, based on Vonsacken's reference to reading to Reese a "BMV2255 form," that he asked Reese to take a chemical test to measure the concentration of alcohol in his breath, blood, or urine.