Cox v. Fisher Fazio Foods, Inc. , 13 Ohio App. 3d 336 ( 1984 )

I agree with the result reached by the majority, but believe that my views require additional explanation. Some earlier authority described the award of prejudgment interest as a matter for the trial court's discretion. None of those cases construed or applied the language in R.C. 1343.03(C).

That code section permits the trial court to allow prejudgment interest in tort cases only if the court makes a specific factual determination at a hearing subsequent to the verdict. Before allowing such prejudgment interest, the court must find (a) "that the party required to pay the money failed to make a good faith effort to settle the case," and (b) "that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case." In this case, we must presume that the trial court made such conclusory findings. Neither party made a timely request for separate findings of fact and conclusions of law pursuant to Civ. R. 52, so we are obliged to accept those conclusions unless they are contrary to the manifest weight of the evidence.

In my view, the trial court has no greater discretion on this subject than it has in reaching a non-jury verdict involving factual issues. However, this court should not reject the trial court's factual determinations where they are supported by some competent credible evidence. C. E. Morris Co. v. Foley Constr.Co. (1978), 54 Ohio St.2d 279 [8 O.O.3d 261], syllabus. We are guided by a presumption that the findings of the trier of fact were correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169.

I read R.C. 1343.03(C) to require the party seeking prejudgment interest to demonstrate its aggressive prejudgment settlement efforts and its adversary's lack of aggressive prejudgment settlement efforts. The failure to make a good faith effort is not equivalent to bad faith conduct. A party's inactivity can constitute a failure to make good faith efforts without demonstrating bad faith.

For settlement purposes, good faith efforts include the following: (a) an affirmative effort to gather relevant data, (b) an affirmative effort to disclose relevant data to the adversary, (c) an affirmative effort to evaluate that party's risks in litigation reasonably, and (d) an affirmative effort to propose settlement consistent with that reasonable evaluation.

The record here provides some competent credible evidence which supports the trial court's apparent conclusions in these matters.