Lehrner v. Safeco Insurance/American States Insurance (171 Ohio App. 3d 570, 2007)

Brogan, Judge.

{¶ 1} This litigation stems from an automobile accident in which Howard Jock, an employee of Lavello’s Pizza, experienced a seizure while making a delivery and struck two elderly pedestrians, Ann and Leon Lehrner. At the time of the accident, the Lehrners were walking to their car from Don’s Pawn Shop, a family-owned business that they operated with their son, Harvey. Although Ann Lehrner recovered from her injuries, Leon Lehrner died as a result of the accident.

{¶ 2} On March 28, 2000, Ann Lehrner and Harvey Lehrner, acting as executor of the estate of Leon Lehrner, filed a lawsuit against Jock and the owners of Lavello’s Pizza, Michael and Sharon Herbert. The complaint included causes of action for wrongful death, conscious pain and suffering, and personal injury to Ann Lehrner. The complaint sought to hold the Herberts liable on the basis of respondeat superior. The Lehrners’ lawsuit also named their own insurer, Safeco/American States Insurance Company (“Safeco”), as a defendant for purposes of obtaining underinsured-motorist coverage. The Lehrners later amended their complaint to add a claim against the Herberts for negligent hiring, supervision, and retention of Jock.

{¶ 3} In addition to the primary action filed by the Lehrners, the Herberts filed a third-party complaint against Utica First Insurance Company (“Utica”), seeking a declaration of coverage for the Lehrners’ claims against them under a Utica business-owners’ liability policy that they had purchased. Utica responded with a counterclaim against the Herberts, seeking a declaration that the policy it had issued to the Herberts provided no coverage for the Lehrners’ claims. For its part, Safeco also sought a declaration that Utica did owe coverage to the Herberts.

{¶ 4} In resolving cross-motions for summary judgment filed by Utica and Safeco, the trial court ruled on June 29, 2001, that the claim of negligent hiring, supervision, and retention against the Herberts was “permitted within the insurance policy issued by Utica to the Herberts.” Therefore, the trial court found that Utica had a duty to defend the Herberts on all claims against them. The trial court indicated that its ruling was limited “to the issue of whether Utica must provide insurance coverage, defend and/or indemnify their insured.” The trial court expressed its conclusion on this issue as being “in the affirmative.”

{¶ 5} In response to a later motion by Utica, the trial court clarified the foregoing ruling. In a January 9, 2002 entry, it ruled as follows:

{¶ 6} “The commercial general liability policy issued to the Herberts for Lavello’s specifically excludes coverage for bodily injury which arose from the automobile accident. The facts in this matter are that the Lehrners were injured as a result of an automobile driven by Jock. Clearly, this is the exact scenario that the policy was intending to exclude. The Herberts have misinterpreted the Court’s Decision of June 29, 2001, to mean that since Utica was ordered to defend, there is automatic coverage under the policy. This is inaccurate.”

{¶ 7} The trial court then bifurcated the proceedings into liability and damages phases. At the conclusion of a May 2002 liability trial, a jury found Jock liable to the Lehrners. The jury also found the Herberts liable to the Lehrners for Jock’s negligence through respondeat superior. Finally, the jury found the Herberts liable to the Lehrners for negligent hiring, supervision, and retention of Jock. Following the liability trial, the Lehrners settled with Jock for his $25,000 automobile liability policy limit.

{¶ 8} After the liability phase, the trial court filed findings of fact and conclusions of law on January 15, 2003, addressing the obligations of Utica and Safeco under their insurance policies. The trial court ruled as follows:

{¶ 9} “1. On July 23, 1998, Utica First Insurance Company insured Michael and Sharon Herbert, both individually and doing business as Lavello’s Pizza, under a commercial liability policy with $1,000,000 in coverage for each occurrence and $2,000,000 in coverage in the aggregate;

{¶ 10} “2. The Utica First Insurance policy issued to Michael and Sharon Herbert and Lavello’s Pizza provides coverage for the negligence of Michael and Sharon Herbert in hiring, supervising and retaining Howard Jock as an employee of Michael and Sharon Herbert, and doing business as Lavello’s Pizza at all times material to this matter and specifically on July 23, 1998, and said negligence is a cause of the personal injury to Ann Lehrner and the death of Leon Lehrner;

{¶ 11} “3. Utica First Insurance Company must indemnify both Michael and Sharon Herbert, both individually and doing business as Lavello’s Pizza, for Michael Herbert’s negligent hiring, retention and supervision of Howard Jock, as well as Sharon Herbert’s negligent hiring, retention and supervision of Howard Jock;

{¶ 12} “4. That Michael Herbert and Sharon Herbert are uninsured for purposes of respondeat superior claims;

{¶ 13} “5. That Howard Jock is underinsured;

{¶ 14} “6. That the limits of the Utica First policy are not required to be exhausted prior to the triggering of UM/UIM coverage available under the Safeco/American States policies listed below;

{¶ 15} “7. Safeco/American States issued four policies of insurance to Leon and Ann Lehrner and/or the business known as Don’s Pawn Shop. The Court further finds that the Plaintiffs have available to them UM/UIM coverage under said policies in the following amounts:

a. Personal Auto Policy $ 500,000

b. Personal Umbrella $1,000,000

c. Business Auto Policy $ 500,000

d. Business Umbrella $1,000,000.”

{¶ 16} After the trial court made the foregoing findings, the matter then proceeded to a damages trial that concluded on January 28, 2003. A jury entered a verdict for the Lehrners in the amount of $838,403.47, with $772,687.71 of that amount going to Leon Lehrner’s estate and $65,715.76 going to Ann Lehrner. The award included various components of damages. The jury awarded zero damages, however, for Ann Lehrner’s loss of support from the reasonably expected earning capacity of Leon Lehrner.

{¶ 17} Following the jury’s verdict, the Lehrners moved for prejudgment interest against Safeco and Utica and for a new trial on Ann Lehrner’s damages claim for loss of support. On September 10, 2003, the trial court sustained the new-trial motion on the loss-of-support issue. In so doing, the trial court concluded that “[a] reasonable jury could not have concluded that Ann Lehrner suffered no damage or loss from the reasonably expected earning capacity of Leon Lehrner.” The trial court conducted the new trial on March 22 through 24, 2004. Following this trial, the jury again returned a verdict of zero damages for Ann Lehrner’s loss of support from the reasonably expected earning capacity of Leon Lehrner. On April 7, 2004, the Lehrners moved for a judgment notwithstanding this verdict and for another new trial. The trial court overruled the motion on September 6, 2005, finding that the evidence was legally sufficient to support the jury’s verdict, that there was no evidence of the verdict being influenced by passion or prejudice, that the verdict was not contrary to law, and that it could be reconciled with the evidence.

{¶ 18} In its September 6, 2005 ruling, the trial court also awarded the Lehrners prejudgment interest against Safeco under R.C. 1343.03(A) and (C). The trial court declined to award the Lehrners any prejudgment interest against Utica. Thereafter, on September 23, 2005, the trial court filed its final judgment entry in the ease. It entered judgment in favor of the Lehrners “and against the Defendants, Safeco Insurance/American States Insurance Company, and against Michael and Sharon Herbert, jointly and severally, in the amount of the jury verdicts, which totaled $838,403.47, less the $25,000.00 paid by Progressive Insurance Company on behalf of Defendant Howard Jock.” The trial court also ordered Safeco to pay prejudgment interest at the rate of ten percent per annum on the $838,403.47 jury verdict from the date of the accident to the date of the final judgment entry. The trial court determined that the prejudgment interest award totaled $601,123.78. The trial court then stated, “Defendant Safeco Insurance/American States Insurance Company is primarily responsible for the judgment due to Plaintiffs and Plaintiffs are not required to first collect on any judgment from any other tortfeasor or insurer in order to seek satisfaction of this judgment from Defendant Safeco Insurance/American States Insurance Company.” The trial court also found that postjudgment interest would accrue against Safeco on the sum of $1,439,527.20, which represented the jury verdict plus the prejudgment interest award minus the $25,000 previously paid by Howard Jock’s automobile liability insurer. Finally, the trial court found that postjudgment interest would accrue against the Herberts on the sum of $813,403.47, which was the amount of the jury verdict minus the $25,000 paid by Jock’s automobile liability insurer.

{¶ 19} Utica filed a timely appeal in Montgomery App. No. 21324 from the trial court’s September 23, 2005 final judgment entry and various earlier rulings. Safeco filed a similar timely appeal in Montgomery App. No. 21325. Both appeals included cross-appeals filed by the Lehrners, the Herberts, and/or Safeco. On November 14, 2005, we sua sponte consolidated Montgomery App. Nos. 21324 and 21325, both of which are now before this court for disposition.

{¶ 20} As a means of analysis, we will address each appeal and cross-appeal separately.

I. Direct Appeal by Utica

{¶ 21} Utica’s sole assignment of error is as follows:

{¶ 22} “The trial court erred in holding that Utica’s policy of commercial liability insurance issued to Michael and Sharon Herbert (d/b/a Lavello’s Pizza) provided coverage for the Herberts’ negligent hiring, supervision, and retention of Howard Jock where the policy expressly excluded coverage for injuries arising out of the operation, use, or supervision of an auto.”

{¶ 23} In this assignment of error, Utica argues that its business-owners’ policy unambiguously excludes coverage for the claim of negligent hiring, retention, and supervision brought against the Herberts. It contends that the trial court erred in ruling otherwise and finding coverage to exist under the policy.

{¶ 24} While generally providing property and liability coverage for the Herberts’ pizza business, the Utica policy contains the following exclusion:

{¶ 25} “We do not pay for a loss if one or more of the following excluded events apply to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events caused the loss before, at the same time as, or

{¶ 26} after the excluded event.

{¶ 27} “ * * *

{¶ 28} “6. We do not pay for bodily injury or property damage that arises out of the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of:

{¶ 29} “ * * *

{¶ 30} “b. an auto * *

{¶ 31} Upon review, we agree with Utica’s position that the foregoing language unambiguously excludes coverage for the claim of negligent hiring, retention, and supervision brought against the Herberts. The policy denies coverage for a bodily injury arising out of the operation of an automobile. The bodily injury to the Lehrners arose out of Howard Jock’s operation of an automobile. This is evident from the fact that he hit them with his car after suffering a seizure while making a pizza delivery. The Utica policy also denies coverage for a bodily injury arising out of the supervision of an automobile. Thus, even if it might be argued that the bodily injury to the Lehrners arose out of the Herberts’ negligence in supervising Jock’s use of a car to deliver pizza, the policy would deny coverage for the claim against the Herberts.

{¶ 32} In reaching this conclusion, we see no ambiguity in the policy’s exclusionary language and, therefore, no basis for construing it against Utica. The only conceivable ambiguity involves the phrase “arises out of.” In our view, however, this phrase is unambiguous. “Arise” means “[t]o originate; to stem (from)” or “[t]o result (from).” Black’s Law Dictionary 115 (8th Ed.2004). Therefore, the Utica policy does not pay for a bodily injury that originates, stems, or results from the operation or supervision of an automobile. The injury to the Lehrners did originate, stem, or result from the operation or supervision of Jock’s automobile. We find no ambiguity.

{¶ 33} The focus of the inquiry in the present case must be on whether the injuries to the Lehrners arose out of the operation or supervision of a car, not on whether the Utica policy specifically excludes coverage for claims alleging negligent hiring, supervision, and retention liability. This is so because the Utica policy expressly excludes coverage for a bodily injury arising out of the operation or supervision of a car. The Herberts’ own negligence may have been a proximate cause of the Lehrners’ injuries, but that fact goes to the Herberts’ underlying tort liability. It is not determinative of the coverage issue. To determine coverage, we look to the policy language itself, which excludes bodily injuries arising out of the operation or supervision of an automobile. For the reasons set forth above, we conclude that the exclusion bars coverage for the Lehrners’ claim of negligent hiring, supervision, and retention against the Herberts.

{¶ 34} The concurrent-cause language of the Utica policy quoted above adds further support to our conclusion. Here the injury to the Lehrners arose out of Howard Jock’s operation of a ear. Under the policy exclusion discussed above, such an injury is excluded from coverage. The concurrent-cause language provides that this exclusion applies “regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events caused the loss before, at the same time as, or after the excluded event.” Even assuming that the Herberts’ negligent hiring, supervision, and retention were an otherwise-covered event that contributed to the Lehrners’ injuries, the concurrent-cause language would preclude coverage because Jock’s operation of an automobile, a concurrent cause, was an excluded event.

{¶ 35} Finally, even without regard to the concurrent-cause language, our own case law supports a determination that the Utica policy exclusion applies to the claim of negligent hiring, supervision, and retention against the Herberts. In United States Fid. & Guar. Co. v. St. Elizabeth Med. Ctr. (1998), 129 Ohio App.3d 45, 716 N.E.2d 1201, a physician committed malpractice while performing surgery on a number of patients. As a result, the patients filed lawsuits against the hospital where the surgeries had occurred. The lawsuits alleged that the hospital was liable for negligent credentialing of the physician. USF & G, the hospital’s insurer, argued that the negligent-credentialing claims were excluded from coverage under general-liability policies it had issued to the hospital. The policies included a malpractice and professional-services exclusion that barred coverage for “bodily injury or property damage due to * * * the rendering of or failure to render * * * medical, surgical, dental, x-ray or nursing service or treatment.” Id. at 51, 716 N.E.2d 1201.

{¶ 36} The insurer argued that the exclusion precluded coverage on the negligent-credentialing claims against the hospital because the patients’ bodily injuries were due to the physician’s rendering or failure to render medical or surgical service or treatment. In response, the hospital argued that the negligent-credentialing claims themselves were not barred from coverage under the exclusion. We rejected this argument. In so doing, we observed:

{¶ 37} “ ‘The nature of many liability insurance losses is such that it is almost always possible to theoretically separate the activity which was occurring at the time of the loss (driving, loading, treating patients, and so forth), from some related but antecedent or concurrent activity that arguably contributed to the loss (hiring, supervision, training, packaging, and so forth).’ 7 Couch on Insurance (3 Ed.1997), 101-157, Section 101.60.

{¶ 38} “It is often the case that ‘the activity which was occurring at the time of the loss’ (e.g., treating patients) is excluded from coverage under the insurance policy in question, while the ‘related but antecedent or concurrent activity that arguably contributed to the loss’ (e.g., hiring, supervision, etc.) is not excluded. In such cases, courts will allow recovery under the policy where the preliminary or concurrent act of planning, supervising, etc. is ‘independent’ of the excluded cause. * * * Conversely, courts will disallow recovery where the preliminary or concurrent act contributing to the loss is not independent of the excluded cause. * * * The preliminary or concurrent act contributing to the loss is independent of the excluded cause only where the act (1) can provide the basis for a cause of action in and of itself and (2) does not require the occurrence of the excluded risk to make it actionable.” Id., 129 Ohio App.3d at 51-52, 716 N.E.2d 1201, quoting 7 Couch on Insurance (3 Ed.1997) 101-157, Section 101.60.

{¶ 39} We next explained in United States Fid. & Guar. Co. why the negligent credentialing claims against the hospital were excluded from coverage:

{¶ 40} “Applying the foregoing to the case before us, we begin by noting that any injuries stemming from the surgical procedures performed by Dr. Burt are expressly excluded from coverage under paragraph 1(a) of the exclusionary clause in question. For purposes of this argument, we shall assume without deciding that losses caused by negligent credentialing are not excluded per se from coverage. Therefore, the question becomes whether SEMC’s alleged negligent credentialing of Dr. Burt is ‘independent’ of the surgical procedures performed by Dr. Burt, for purposes of determining whether negligent credentialing constitutes a cause of loss independent from the excluded cause, i.e., the rendering of medical or surgical services or treatment.

{¶ 41} “While it is clear that a claim of negligent credentialing provides a basis for a cause of action in and of itself, * * * it is equally clear that no plaintiff can maintain a cause of action for negligent credentialing without demonstrating that his or her injuries were caused by some physician on the hospital’s staff who rendered or failed to render medical services to the plaintiff. Thus, losses caused by negligent credentialing are not independent losses caused by the rendering or failure to render medical or surgical service or treatment. As a result, the claims brought against SEMC are excluded from the policies’ coverage.” Id., 129 Ohio App.3d at 52-53, 716 N.E.2d 1201.

{¶ 42} The parallel between United States Fid. & Guar. Co. and the present case is manifest. Negligent hiring, supervision, and retention can provide the basis for a cause of action in and of itself. However, plaintiffs such as the Lehrners cannot maintain such a claim without demonstrating that their injuries were caused by Jock’s own negligent operation of an automobile. Indeed, a claim of negligent hiring, supervision, and retention against an employer is not viable without an underlying act of negligence by an employee that causes an injury or loss. The elements of a claim for negligent hiring, supervision, and retention are (1) the existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s knowledge of the employee’s incompetence, (4) the employee’s act or omission causing the plaintiffs injuries, and (5) a causal link between the employer’s negligence in hiring, supervising, and retaining and the plaintiffs injuries. Harmon v. GZK, Inc. (Feb. 8, 2002), Montgomery App. No. 18672, 2002 WL 191598.

{¶ 43} As set forth above, Jock’s negligent operation of a car is an excluded cause of injury under the Utica policy. But to prevail on a claim of negligent hiring, supervision, and retention against the Herberts, the Lehrners were required to prove, inter alia, that Jock’s act or omission (i.e., operation of a car) caused their injuries. Therefore, any injury or loss to the Lehrners as a result of negligent hiring, supervision, and retention by the Herberts is not independent of the excluded cause, Jock’s operation of an automobile, and is not covered under the Utica policy.

{¶ 44} In opposition to our reading of the Utica policy and our determination that it provides no coverage in this case, Safeco and the Herberts advance several arguments. Most notably, they contend that our 1998 decision in United States Fid. & Guar. Co. is incompatible with the Ohio Supreme Court’s more recent ruling in Doe v. Shaffer (2000), 90 Ohio St.3d 388, 738 N.E.2d 1243. According to Safeco and the Herberts, Shaffer runs contrary to the rationale of United States Fid. & Guar. Co. and, in so doing, undercuts Utica’s argument that we should look to the cause of injury, rather than the theory of liability, to determine whether coverage exists.

{¶ 45} Having reviewed Shaffer, we do not agree that it implicitly overruled or superseded our decision in United States Fid. & Guar. Co. The two rulings are not incompatible, because they address different issues. The issue before the Ohio Supreme Court in Shaffer was “whether the public policy precluding liability insurance coverage for acts of sexual molestation also prohibits coverage for a nonmolester for related claims alleging negligent supervision, negligent retention, and negligent failure to warn.” Shaffer, 90 Ohio St.3d at 390, 738 N.E.2d 1243. Shaffer involved a suit against the operators of a nursing home for negligent supervision and retention of an employee who sexually abused a resident. In its opinion, the majority recognized that Ohio public policy forbids insurance coverage for the intentional tort of sexual molestation. The Shaffer court determined, however, that the same public policy did not prohibit coverage for a defendant who merely was negligent with regard to sexual abuse committed by another. Therefore, it held that “Ohio public policy permits a party to obtain liability insurance coverage for negligence related to sexual molestation when that party has not committed the act of sexual molestation.” Id. at 395, 738 N.E.2d 1243.

(¶ 46} Shaffer addressed public policy, not policy language. The fact that public policy allows the purchase of insurance for negligence related to sexual molestation says nothing about whether the Utica policy exclusion applies in this case. Shaffer may support the proposition that public policy permitted the Herberts to obtain a liability policy for their own negligence related to Howard Jock’s operation of an automobile, but they did not. In short, Shaffer holds that a nonmolester may be insured for acts of negligence related to molestation, but it does not hold that a nonmolester must be so insured or is so insured under a given policy. See Allstate Ins. Co. v. Dolman, Lucas App. Nos. L-05-1281, L~ 05-1290, 2006-Ohio-4134, 2006 WL 2320939, ¶ 24 (“Shaffer stands for the proposition that insuring against the negligence of a non-molester is not against public policy. The Ohio Supreme Court in Shaffer did not interpret the insured’s policy language. It dealt only with the issue of whether public policy precludes coverage for a negligent, non-molesting party”). Because Utica relied on its policy language, not public policy, to deny coverage in this case, we are unpersuaded by Safeco’s and the Herberts’ citation of Shaffer.

{¶ 47} Safeco and the Herberts additionally assert that a claim for negligent hiring, supervision, and retention is based on an employer’s direct liability, as opposed to respondeat superior, which is grounded in a theory of derivative liability. While we do not necessarily dispute this distinction, the fact remains that a necessary element of a claim of negligent hiring, supervision, and retention is an act or omission by the employee causing injury or loss to a plaintiff. The act involved here was Howard Jock’s negligent operation of an automobile. The Utica policy precludes coverage for injuries arising out of the operation of an automobile. As a result, the claim of negligent hiring, supervision, and retention is not covered under the Utica policy. United States Fid. & Guar. Co., 129 Ohio App.3d at 52-53, 716 N.E.2d 1201.

{¶ 48} Safeco and the Herberts next argue that the Utica policy provides coverage because the Herberts’ legal obligation to pay damages arises out of negligence in their employment relationship with Howard Jock and not from an automobile accident. In connection with this argument, Safeco and the Herberts contend that the Utica policy is “at best” ambiguous and, therefore, must be construed to provide coverage. They also cite several cases from other states to support their position. Based on the reasoning set forth in our analysis of the Utica policy, we are unpersuaded that it is ambiguous. For the reasons articulated above, we also do not agree that Jock’s negligent operation of an automobile can be separated from the Herberts’ negligent hiring, supervision, and retention for purposes of determining coverage under the Utica policy. With regard to the out-of-state cases cited by Safeco and the Herberts, they demonstrate only a split of opinion nationally. As noted by Utica, cases from other jurisdictions exist that support the conclusion we have reached herein. In a reply brief, Safeco itself admits that the cases it cites represent the minority view. For purposes of resolving the issue before us, however, we need to look no further than our own holding in United States Fid. & Guar. Co., which we find to be dispositive, and the Ohio Supreme Court’s ruling in Shaffer, which we find to be distinguishable.

{¶ 49} Safeco and the Herberts also maintain that a presumption of coverage should exist under the Utica policy because it does not specifically exclude claims of negligent hiring, supervision, and retention. Once again, we do not agree. Coverage under the Utica policy simply is not conditioned on whether the insured’s liability (i.e., the Herberts’ negligent hiring, etc.) arises out of the operation of an automobile. It is conditioned on whether the injury or loss (i.e., the injuries to the Lehrners) arises out of the operation of an automobile. Consequently, as we have explained above, the proper inquiry in this case is whether the Lehrners’ injuries arose out of the operation of an automobile, not whether the theory of liability known as negligent hiring, supervision, and retention is specifically excluded by the Utica policy.

{¶ 50} We are equally unpersuaded by Safeco’s and the Herberts’ reliance on Lock v. Oney’s Pub (Nov. 8, 1996), Montgomery App. No. 15577,1996 WL 648357. Lock involved a bar fight between two patrons. The bar owner held a liability insurance policy containing an exclusion for injury arising out of “the actual or threatened assault or battery or the failure to suppress or prevent such action by the insured or by anyone else for whom the insured is legally responsible.” Upon review, we held that the exclusion was ambiguous as to whether it applied to an assault committed by a patron as opposed to a bar employee. Despite Safeco’s and the Herberts’ argument to the contrary, we see no similar ambiguity here. The Utica policy excludes coverage for injuries that arise out of the use, operation, or supervision of a car, period, without regard to who was driving the vehicle.

{¶ 51} Safeco and the Herberts next argue that a separation-of-insureds clause in the Utica policy compels a finding that coverage exists for the Lehrners’ claim of negligent hiring, supervision, and retention. The separation-of-insureds clause states:

{¶ 52} “6. Separate Insureds — Coverage provided under the Commercial Liability Coverage applies separately to each insured against whom claim is made or suit is brought. This does not affect the limits stated under How Much We Pay.”

{¶ 53} Safeco and the Herberts contend that the foregoing clause means that if an event occurs for which multiple claims are brought, coverage may be excluded for one insured, while another insured’s act or omission may be covered. Although we do not necessarily disagree, we fail to see how this fact demonstrates that the policy provides coverage for the Lehrners’ claim of negligent hiring, supervision, and retention. The separation-of-insureds clause makes the coverage actually provided by the policy applicable to all insureds equally. It does not purport to create coverage when a policy exclusion applies. In the present case, the Utica policy excludes coverage for the claim of negligent hiring, supervision, and retention against the Herberts, and nothing in the separation-of-insureds clause persuades us otherwise.

{¶ 54} Based on the reasoning set forth above, we sustain Utica’s assignment of error and hold that the trial court erred insofar as it determined that the Utica policy covers the Herberts’ negligent hiring, supervision, and retention of Howard Jock.

II. Direct Appeal by Safeco

{¶ 55} Safeco advances the following nine assignments of error in its direct appeal:

{¶ 56} 1. “The trial court erred in denying American States’ motion for summary judgment on the Lehrners’ underinsured motorist claims and erred as a

matter of law in concluding the Lehrners could recover underinsured motorist coverage.”

{¶ 57} 2. “The trial court erred as a matter of law in concluding that the Lehrners could recover uninsured motorist coverage.”

{¶ 58} 3. “The trial court erred as a matter of law in ordering American States to pay prejudgment interest.”

{¶ 59} 4. “The trial court abused its discretion in ordering American States to pay prejudgment interest.”

{¶ 60} 5. “The trial court erred as a matter of law in calculating prejudgment interest.”

{¶ 61} 6. “The trial court erred as a matter of law in entering final judgment against American States as a joint tortfeasor.”

{¶ 62} 7. “The trial court erred as a matter of law in concluding American States had a right of contribution.”

{¶ 63} 8. “The trial court erred as a matter of law in concluding American States had a right of subrogation.”

{¶ 64} 9. “The trial court abused its discretion in failing to enter final judgment.”

{¶ 65} In its first assignment of error, Safeco contends that the underinsuredmotorist policy it issued to the Lehrners required Howard Jock’s liability insurance and the Herberts’ Utica insurance to be exhausted before coverage would be available. Although the Lehrners settled with Jock for his $25,000 policy limit, Safeco contends that the trial court erred in finding that exhaustion of coverage under the Herberts’ Utica policy was not a condition precedent for underinsured-motorist coverage through Safeco. According to Safeco, the Lehrners were not entitled to any underinsured-motorists coverage, because the Herberts had sufficient liability insurance through Utica to satisfy the judgment.

{¶ 66} This assignment of error lacks merit in light of our disposition of Utica’s direct appeal. Safeco’s argument rests on a premise that the Herberts have coverage available to them under their Utica policy. As we have explained above, they do not. Therefore, there is no additional insurance coverage to be exhausted before the Lehrners may obtain underinsured-motorist coverage through Safeco. Moreover, the only setoff amount available under any liability policy is the $25,000 paid to the Lehrners by Jock’s automobile insurer. In its September 23, 2005 final judgment entry, the trial court properly deducted this $25,000 payment from the amount of the jury verdict. As a result, we overrule Safeco’s first assignment of error.

{¶ 67} In its second assignment of error, Safeco contends that the trial court erred in finding that the Lehrners were entitled to uninsured-motorist coverage on their respondeat superior claim against the Herberts. The trial court addressed this issue in a January 15, 2003 order. It first found that Howard Jock was underinsured because he had only $25,000 of automobile-liability insurance. The trial court then found that the Herberts were uninsured for purposes of the respondeat superior claim against them. As a result, the trial court concluded that Safeco was obligated to provide the Lehrners with underinsured-motorist coverage for their claim against Jock and uninsured-motorist coverage for their respondeat superior claim against the Herberts. On appeal, Safeco contends that the trial court erred in finding the Lehrners entitled to uninsured-motorist coverage for the Herberts’ respondeat superior liability.

(¶ 68} Upon review, we find Safeco’s argument to be persuasive. Uninsured-motorist coverage protects insureds “who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” (Emphasis added.) Former R.C. 3937.18(A)(1) 1997 Am.Sub.B. No. 261, 147 Ohio Laws, Part II, 2372. Here Jock owned and operated the car involved in the accident, and he had $25,000 in automobile-liability coverage. Therefore, the trial court correctly found that he was an underinsured tortfeasor. As for the Herberts, we agree with the trial court’s determination that they were uninsured for purposes of the respondeat superior claim against them. But the Herberts neither owned nor operated the car involved in the accident. Although they were found liable on theories of respondeat superior and negligent hiring, supervision, and retention, they were not motorists at all. As a result, they do not qualify as owners or operators of an uninsured motor vehicle for purposes of the Lehrners’ obtaining uninsured-motorist coverage from Safeco. Because Jock had automobile-liability insurance and the Herberts did not own or operate the vehicle involved in the accident, we find no basis for requiring Safeco to provide the Lehrners with uninsured-motorist coverage.

{¶ 69} In opposition to the foregoing conclusion, the Lehrners insist that “[t]he Herberts were vicarious operators of the motor vehicle at issue * * They base this argument on the fact that the Herberts had control over Jock and were found responsible for his actions through respondeat superior. While acknowledging an absence of case law on point, the Lehrners assert that their position is supported by Motorists Mut. Ins. Co. v. Tomanski (1971), 27 Ohio St.2d 222, 56 O.O.2d 133, 271 N.E.2d 924. We disagree. In Tomanski, the victim was injured by the concurrent negligence of an insured motorist and an uninsured motorist. The Ohio Supreme Court held that the victim was entitled to coverage under the uninsured-motorist provision of his policy. Unlike Tomanski, the present case does not involve the concurrent negligence of Jock and an uninsured motorist. Jock was the only motorist-tortfeasor, and he was insured. Although the Herberts were tortfeasors, they were not motorists. Therefore, the trial court erred in finding the Lehrners entitled to uninsured-motorist coverage from Safeco on their respondeat superior claim against the Herberts. Safeco’s second assignment of error is sustained.

{¶ 70} In its third and fourth assignments of error, Safeco contends that the trial court erred as a matter of law, and abused its discretion, by ordering it to pay prejudgment interest under R.C. 1343.03(A) and 1343.03(C). With regard to the former provision, Safeco contends that no money ever became “due and payable” from Safeco to the Lehrners under R.C. 1343.03(A). This is so, Safeco asserts, because the Lehrners failed to exhaust coverage under the Herberts’ Utica policy, which would have been sufficient to satisfy the jury’s verdict. With regard to the latter provision, Safeco argues that R.C. 1343.03(C) does not apply to underinsured-motorist claims, which are grounded in contract rather than tort.

{¶ 71} Upon review, we are unpersuaded by Safeco’s argument with regard to prejudgment interest under R.C. 1343.03(A). The Ohio Supreme Court has made clear that an underinsured-motorist claim is a contract claim for purposes of R.C. 1343.03(A), the prejudgment-interest statute. Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 341, 695 N.E.2d 1140. Subsection (A) of the statute provides for an award of prejudgment interest “when money becomes due and payable upon any * * * instrument of writing.” Here the “instrument of writing” is Safeco’s policy providing the Lehrners with underinsured-motorist coverage. Safeco’s argument that no money ever became “due and payable” under the policy is based on the mistaken premise that the Lehrners were required first to exhaust coverage available under the Herberts’ Utica policy. As we explained in our analysis of Utica’s direct appeal, the Herberts have no coverage available to them in this case. Therefore, there was no insurance to exhaust prior to money becoming due and payable from Safeco to the Lehrners, and the trial court did not err by awarding prejudgment interest under R.C. 1343.03(A).

{¶ 72} We find merit, however, in Safeco’s argument regarding prejudgment interest under R.C. 1343.03(C). The legal basis for recovery on an underinsured-motorist claim is contract, and such a claim is subject to an award of prejudgment interest under R.C. 1343.03(A). Landis, 82 Ohio St.3d at 340-341, 695 N.E.2d 1140; Snow v. Pollick, Lucas App. No. L-02-1104, 2003-Ohio-490, 2003 WL 220457, ¶ 15 (noting that “claims arising out of an uninsured/under-insured policy of motorist insurance are contractual claims, and as such, R.C. 1343.03(A) is the applicable provision under which to award prejudgment interest”); Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App.3d 535, 545, 2003-Ohio-5398, 802 N.E.2d 157, ¶ 60 (stating that “claims for underinsured motorists coverage are contract claims arising from tortious conduct”); Oakar v. Farmers Ins. Co. of Columbus, Inc. (1998), 129 Ohio App.3d 277, 278-279, 717 N.E.2d 778 (recognizing that prejudgment interest on underinsured-motorist claims is governed by R.C. 1343.03(A) rather than R.C. 1343.03(C)). On the other hand, prejudgment interest is available under R.C. 1343.03(C) when a party has engaged in tortious conduct. Butler v. Minton, Erie App. No, E-05-061, 2006-Ohio-4800, 2006 WL 2640269, ¶ 31; Chester v. Custom Countertop & Kitchen, Inc. (Dec. 17, 1999), Trumbull App. No. 98-T-0193, 1999 WL 1299301 (“A claim for prejudgment interest will be governed by either R.C. 1343.03(A) or (C), depending on whether the claim is contract based or tort based. * * * R.C. 1343.03(A) applies to contract based claims, while subsection (C) only applies to tort based claims”). Here the Lehrners did not obtain a judgment against Safeco on any tort claim, and Safeco is not a tortfeasor. Although there plainly would be no underinsured-motorist claim but for the existence of tortious conduct (i.e., Jock’s negligent driving), an underinsured-motorist claim itself remains a contract claim. Landis, 82 Ohio St.3d at 340-341, 695 N.E.2d 1140. Therefore, the Lehrners are not entitled to prejudgment interest from Safeco under R.C. 1343.03(C), and the trial court erred in concluding otherwise.

{¶ 73} In opposition to the foregoing conclusion, the Lehrners rely on Miller v. Gunckle, 96 Ohio St.3d 359, 2002-Ohio-4932, 775 N.E.2d 475. The issue in that case was whether a prejudgment interest award against an insurance company may exceed the insured’s policy limit. In resolving this issue, the majority apparently assumed that R.C. 1343.03(C) applied despite the fact that prejudgment interest had been awarded on an uninsured-motorist claim brought against an insurance company. Id. at 364, 775 N.E.2d 475. The majority’s citation to R.C. 1343.03(C) is puzzling, given that the parties, the court of appeals, and even the dissent, consistent with Landis, reviewed and discussed the case in the context of R.C. 1343.03(A). In any event, the Ohio Supreme Court’s reference to R.C. 1343.03(C) rather than R.C. 1343.03(A) was immaterial to its holding that “an insurer is liable for an entire award up to the insured’s policy limit plus any prejudgment interest awarded on that policy limit.” Id. at 366, 775 N.E.2d 475. The Miller court’s holding did not turn on which subsection of R.C. 1343.03 applied. Therefore, we will treat the citation in Miller as dicta and follow Landis and the other cases cited above, which directly hold that R.C. 1343.03(A) applies to UM/UIM and other contract-based claims. For the reasons set forth in our discussion of Landis, supra, we conclude that the trial court erred in awarding the Lehrners prejudgment interest under R.C. 1343.03(C). Safeco’s third and fourth assignments of error are overruled insofar as they relate to R.C. 1343.03(A) and sustained with regard to R.C. 1343.03(C).

{¶ 74} In its fifth assignment of error, Safeco claims that the trial court erred as a matter of law in calculating prejudgment interest. In support, Safeco first contends that the trial court erred in holding that prejudgment interest accrued at an annual rate of ten percent from the date of the accident until the entry of final judgment. Safeco argues that the trial court should have determined when money became “due and payable” to the Lehrners under their underinsured-motorist coverage with Safeco and then ascertained the applicable interest rate. In response, the Lehrners argue that the trial court correctly awarded prejudgment interest from the date of the accident and also applied the correct interest rate.

{¶ 75} Upon review, we find Safeco’s argument to be persuasive. In a September 6, 2005 order the trial court found the Lehrners entitled to prejudgment interest from Safeco under R.C. 1343.03(A) and 1343.03(C). With regard to the former provision, the trial court specifically held, “Plaintiffs are entitled to prejudgment interest from Safeco, pursuant to R.C. 1343.03(A), at the rate of 10 percent per annum on the $813,000.00 damages award.” With regard to the latter provision, R.C. 1343.03(C), the trial court awarded the Lehrners “prejudgment interest, from the date of the accident giving rise to this matter, at the rate of ten percent per annum.” Thereafter, in its September 23, 2005 final judgment entry, the trial court ordered Safeco to pay prejudgment interest, pursuant to its prior ruling, on the jury verdicts “at the rate of ten percent per annum from the date of the accident herein, July 23, 1998, until the date this Entry is filed.”

{¶ 76} The trial court’s September 6, 2005 ruling did not determine when money became “due and payable” from Safeco to the Lehrners for purposes of a prejudgment-interest award under R.C. 1343.03(A). The trial court simply found that the Lehrners were entitled to such interest “at the rate of 10 percent per annum” without indicating when the interest began to accrue. This omission by the trial court is critical. Under R.C. 1343.03(A), prejudgment interest begins to accrue when money becomes due and payable under an instrument in writing such as an insurance policy. We have recognized that a trial court enjoys broad discretion in determining when money becomes due and payable for purposes of R.C. 1343.03(A). Mundy v. Roy, Clark App. No. 2005-CA-28, 2006-Ohio-993, 2006 WL 522380, ¶ 26. In addition to the date of the accident, other possible dates that money may become due and payable under an insurance policy include the date that a court determines that a loss is covered or the date that a jury renders its verdict. Id.

{¶ 77} In the present case, however, the trial court’s analysis of prejudgment interest under R.C. 1343.03(A) omits any mention of when Safeco’s financial obligation to the Lehrners became due and payable or when prejudgment interest began to accrue.

{¶ 78} As Safeco notes, the trial court also failed to account for a statutory change to the applicable interest rate. The Ninth District recently addressed this issue in Jones v. Progressive Preferred Ins. Co., 169 Ohio App.3d 291, 2006-Ohio-5420, 862 N.E.2d 850, as follows:

{¶ 79} “The language in R.C. 1343.03(A), providing for prejudgment interest rates to be determined according to the annual variable interest rate determined by the Ohio Department of Taxation pursuant to R.C. 5703.47, represents a change from the prior version of that statute, which set the interest rate at ten percent per annum. The change, embodied in Sub.H.B. No. 212, 125 Ohio Laws 63, took effect on June 2, 2004. The uncodified portion of H.B. 212 provides that for court actions pending on the effective date, interest would be awarded at the old statutory rate of ten percent per annum from the date when the money became payable until the effective date and would accrue at the new variable rates beginning on the effective date.” Id. at ¶ 20; see also Mulchin v. ZZZ Anesthesia, Inc., Erie App. No. E-05-045, 2006-Ohio-5773, 2006 WL 3114306, ¶ 56-59; Hausser & Taylor, L.L.P. v. Accelerated Sys. Integration, Inc., Cuyahoga App. No. 86547, 2006-Ohio-1582, 2006 WL 832457, ¶ 11-12.

{¶ 80} Although the present action was pending on June 2, 2004, the trial court’s September 2005 ruling awarded the Lehrners prejudgment interest under R.C. 1343.03(A) at the old ten percent rate. Even if the trial court had found money due and payable from Safeco to the Lehrners prior to June 2, 2004, the ten percent interest rate would apply only until that date. After June 2, 2004, a different, variable rate would apply. Based on the foregoing reasoning, we are persuaded by Safeco’s argument that the trial court erred in failing to determine when its obligation to the Lehrners became due and payable under R.C. 1343.03(A) and in failing to determine the applicable interest rate in accordance with the amended version of the statute.

{¶ 81} Safeco additionally argues that the trial court erred in merging the prejudgment interest award into the jury’s damages award, thereby creating a “new sum total” on which postjudgment interest accrued. In particular, Safeco takes issue with the trial court’s holding in its final judgment entry “that prejudgment interest is subject to postjudgment interest and merges with underlying damage award for purposes of postjudgment interest.” (Doc. # 106).

{¶ 82} We find Safeco’s argument to be without merit. In its final judgment entry, the trial court noted that prejudgment interest amounted to $601,123.78 and that the jury’s verdict totaled $838,403.47. The trial court combined these two figures, finding that the Lehrners were entitled, as of the date of its final judgment entry, to a total of $1,439,527.20 minus the $25,000 that Howard Jock’s automobile-liability insurer already had paid on his behalf. The trial court then awarded postjudgment interest on this sum. We see no error. “When interest is in fact part of the debt owed, awarding interest upon the interest that is a part of the debt is not compounded interest.” Nakoff v. Fairview Gen. Hosp. (1997), 118 Ohio App.3d 786, 788, 694 N.E.2d 107. Moreover, “prejudgment interest is a part of the judgment and like all other components is merged into a single judgment.” Id.; see also Singer v. Celina Group (May 30,1995), Stark App. No. 94-CA-0333,1995 WL 495427 (finding that a trial court properly may include prejudgment interest in a final judgment and award postjudgment interest on it); Schumacker v. Zoll (Oct. 5, 2001), Lucas App. No. L-00-1199, 2001 WL 1198641 (finding nothing in the prejudgment interest statute “that prohibits the trial court from combining the amount of the jury verdict and the award of prejudgment interest into a single judgment and then ordering interest to accrue on that amount”); Thirty-Four Corp. v. Hussey (May 7, 1985), Franklin App. No. 84AP-337, 1985 WL 10275 (“interest upon a judgment is not compound interest, but rather simple interest, on all amounts which the debtor had promised but failed to pay. The expression ‘interest due on interest’ is merely the recognition that, when periodic payments of interest have not been paid as promised, the unpaid interest can constitute a part of the judgment which can then bear simple interest in the same manner as the portion of the judgment which represents principal”).

{¶ 83} In a final argument under its fifth assignment of error, Safeco contends that the trial court erred in employing a “good faith” analysis when discussing its obligation to pay prejudgment interest. We agree. As set forth above, the applicable prejudgment interest statute was R.C. 1343.03(A) rather than R.C. 1343.03(C). Whether or not Safeco refused to pay underinsuredmotorist benefits in good faith “is irrelevant because lack of a good faith effort to settle is not a predicate to an award of prejudgment interest pursuant to R.C. 1343.03(A), as it is under R.C. 1343.03(C).” Landis, 82 Ohio St.3d at 341, 695 N.E.2d 1140. Regardless of Safeco’s good faith or lack thereof, the proper inquiry under R.C. 1343.03(A) is when underinsured-motorist benefits became due and payable to the Lehrners. Id. Based on the foregoing reasoning, Safeco’s fifth assignment of error is sustained in part and overruled in part.

{¶ 84} In its sixth and seventh assignments of error, Safeco contends that the trial court erred as a matter of law by treating it as a joint tortfeasor and finding it jointly and severally liable for the judgment with a right of contribution from Jock and the Herberts. The sixth assignment of error involves the trial court’s statement in its final judgment entry that Safeco and the Herberts were jointly and severally liable and that the Lehrners need not seek recovery from “any other tortfeasor or insurer” besides Safeco. (Doc. # 106). The seventh assignment of error stems from the trial court’s earlier determination that Safeco “confuses the issue of coverage with a cause for contribution from joint tortfeasors” and that Safeco’s remedy in this case “is one for contribution rather than to violate its contract with the Plaintiffs.” (Doc. # 414 at 4).

{¶ 85} Insofar as the trial court’s rulings suggest that Safeco was a tortfeasor sharing joint and several liability with Jock and the Herberts, we find Safeco’s argument to be persuasive. The tortfeasors in the present case were Jock and the Herberts. Neither the trial court nor the jury ever found tort liability on the part of Safeco, which became involved in this litigation only because it provided the Lehrners with underinsured-motorist coverage. Moreover, because Safeco is not a tortfeasor, it cannot have a right of contribution against Jock or the Herberts. The right of contribution is a legal concept that applies to joint tortfeasors. St. Paul Fire & Marine Ins. Co. v. Cassens Trans. Co. (C.A.6 Jan. 26, 2004), 86 Fed.Appx. 869 (applying Ohio law). To make a contribution claim, an insurer “must have paid benefits on behalf of a tortfeasor because the contribution statutes allow only a tortfeasor to make a claim for contribution to the extent that the tortfeasor has paid more than its share of liability.” Id. Because neither Safeco nor its insureds, the Lehrners, are tortfeasors, Safeco cannot have a right of contribution in this case. Id. The proper procedure for an insurance company such as Safeco to recover is through subrogation. Id. Accordingly, we conclude that the trial court erred insofar as its rulings suggest that Safeco is a joint tortfeasor with a right of contribution. Safeco’s sixth and seventh assignments of error are sustained.

{¶ 86} In its eighth assignment of error, Safeco addresses the subrogation issue, arguing that the trial court erred in finding that it also had a right of subrogation. This argument concerns the trial court’s observation in a September 6, 2005 order that when Utica denied coverage on behalf of the Herberts, Safeco should have settled with the Lehrners and then pursued a subrogation claim. Safeco argues that it had (and has) no legal obligation to satisfy the judgment in this case and, therefore, that it can have no right of subrogation. This argument is based on the premise that the Herberts’ Utica policy is available to satisfy the judgment. In our analysis above, we have concluded that the Utica policy provides no coverage under the facts of this case. Therefore, Safeco does have a legal obligation to provide the Lehrners with underinsuredmotorist coverage. Given our determination that Safeco owes coverage, there is no danger of it being deemed a volunteer as argued in its appellate brief. Finally, as set forth above, Safeco’s right to recovery, if any, will be through subrogation. Safeco’s eighth assignment of error is overruled.

{¶ 87} In its ninth assignment of error, Safeco contends that the trial court abused its discretion in failing to enter final judgment. In particular, Safeco argues that the trial court abused its discretion by not entering final judgment until approximately two and one-half years after the first damages trial and one and one-half years after the second damages trial. According to Safeco, the delay prejudiced it by increasing the amount of its prejudgment-interest obligation.

{¶ 88} Upon review, we find Safeco’s argument to be unpersuasive. Following the first damages trial in January 2003, the Lehrners filed motions for a new trial and prejudgment interest. Safeco and Utica also filed premature appeals, which we dismissed. After briefing was completed, the trial court on September 10, 2003, granted the Lehrners a new trial on the limited issue of Ann Lehrner’s loss of support from Leon Lehrner’s reasonably expected earning capacity. The second damages trial took place in March 2004. After the second jury failed to award any loss-of-support damages, the Lehrners moved for another new trial and again requested prejudgment interest. Following briefing, the trial court in June 2004 set an August 2004 hearing date for the prejudgment interest issue. The hearing subsequently occurred over parts of five days and concluded on October 1, 2004. The parties filed posthearing briefs in December 2004. In light of the foregoing facts and procedural history, we find no unreasonable or unexplained delay attributable to the trial court through December 2004.

{¶ 89} The trial court, however, did not resolve the prejudgment-interest issue and other pending motions until September 6, 2005. Thus, more than eight months elapsed from the completion of briefing until the trial court disposed of the prejudgment-interest issue and other pending matters. Shortly thereafter, on September 23, 2005, the trial court filed its final judgment entry. In our view, the only delay that was even arguably unreasonable was the trial court’s eight-month delay before resolving the postjudgment-interest issue and certain other pending motions. The last journal entry in the trial court’s docket prior to its September 6, 2005 ruling is date-stamped January 6, 2005.

(¶ 90} Even assuming, arguendo, that the eight-month delay discussed above was unreasonably long, Safeco has not pointed to any evidence indicating that it objected during the eight-month period. In its appellate brief, Safeco insists that it made “repeated requests to the trial court to enter final judgment.” It cites nothing, however, to support this assertion. A party’s silence in the face of a trial court’s delay in entering judgment waives the issue for appeal. Williams v. ITT Financial Serv. (June 25, 1997), Hamilton App. No. C-960234, 1997 WL 346137. The proper way to raise the issue is by motion followed by a petition for a writ of mandamus or procedendo, if necessary. Id. Here the record is devoid of any motion or petition filed by Safeco in the months preceding the trial court’s September 2005 ruling on the prejudgment interest issue and entry of final judgment. As a result, Safeco cannot now complain that it was prejudiced by the delay. Safeco’s ninth assignment of error is overruled.

III. Cross-Appeal by the Herberts

{¶ 91} The Herberts advance the following assignment of error on cross-appeal:

{¶ 92} “The Trial Court erred when it held in its entry of September 23, 2005, that Utica, although having a duty to defend and indemnify, did not have the primary, and only, duty to satisfy the judgment rendered against Michael Herbert and Sharon Herbert dba La Velio’s Pizza.”

(¶ 93} The Herberts argue that the Utica policy provided enough coverage to satisfy the judgment obtained by the Lehrners. Therefore, they contend that the trial court erred in finding Safeco, as opposed to Utica, primarily responsible for paying the judgment. According to the Herberts, no basis for an underinsuredmotorist claim under the Safeco policy exists if coverage is available under the Utica policy to satisfy the Lehrners’ judgment.

{¶ 94} Upon review, we find the foregoing argument to be unpersuasive. For the reasons set forth in our analysis of Utica’s direct appeal, we conclude that no coverage is available under the Utica policy. Because the Utica policy provides no coverage in this case, the trial court did not err in holding that Safeco had the primary obligation to satisfy the judgment. Indeed, as between Safeco and Utica, Safeco has the only obligation. The Herberts’ assignment of error on cross appeal is overruled.

IV. Cross-Appeal by Safeco

{¶ 95} Safeco advances one assignment of error in its cross-appeal:

{¶ 96} “The trial court erred as a matter of law in its final judgment entry by holding that Utica First Insurance Company was not required to pay its liability coverage although the trial court held on two prior occasions that the liability coverage was available for payment.”

{¶ 97} In this assignment of error, Safeco argues that the trial court erred in not finding Utica obligated to pay the verdict rendered against the Herberts. Although Safeco advances several arguments in support of its cross-appeal, we previously considered and rejected each of them above, in our analysis of Utica’s direct appeal. Therefore, for the reasons set forth in that portion of this opinion, we hold that Utica was not required to provide coverage for the judgment against the Herberts. Safeco’s assignment of error on cross-appeal is overruled.

V. Cross-Appeal by the Lehrners

{¶ 98} The Lehrners advance two assignments of error in their cross-appeal. The first is as follows:

{¶ 99} 1. “The Trial Court erred in denying Plaintiffs’ Civil Rule 50 and 59 motion for judgment notwithstanding the verdict on the sole issue of the economic loss damage to the estate of Leon Lehrner.”

{¶ 100} Although the Lehrners’ first assignment of error refers to the trial court’s denial of judgment notwithstanding the verdict, the argument that follows addresses only the trial court’s denial of a new trial after a second jury returned a verdict of zero damages for Ann Lehrner’s loss of support from the reasonably expected earning capacity of Leon Lehrner. The argument under the first assignment of error contains absolutely no analysis or discussion of the JNOV issue, and the Lehrners conclude their brief by requesting “a new trial on the sole issue of the economic lossAoss of earning capacity damages resulting from Leon Lehrner’s death.” As a result, we will limit our own analysis to the new-trial issue.

{¶ 101} In denying another new trial on the issue of Ann Lehrner’s loss of support from Leon Lehrner’s reasonably expected earning capacity, the trial court noted that the motion sought relief under Civ.R. 59(A)(4), which applies where excessive or inadequate damages appear to have been given under the influence of passion or prejudice, and under Civ.R. 59(A)(7), which provides for a new trial where “[t]he judgment is contrary to law.” The trial court noted that the motion alternatively so