[Cite as State Auto Property & Cas. Ins. Co. v. Abco Fire Protection, Inc., 2021-Ohio-1189.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE AUTO PROPERTY & : 

CASUALTY INSURANCE 

COMPANY, ET AL., : 

 Plaintiffs-Appellants, : 

 No. 109627 

 v. : 

 

ABCO FIRE PROTECTION, INC., : 

 

 Defendant-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 8, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-17-885649 

 

Appearances: 

Collins, Roche, Utley & Garner, L.L.C., David L. Lester, 

and Paul D. Eklund, for appellant Charter Oak Fire 

Insurance Company. 

Connick Law, L.L.C., and Thomas J. Connick, for 

appellee. 

SEAN C. GALLAGHER, P.J.: 

Charter Oak Fire Insurance Company appeals from the jury verdict 

rendered in its favor, and against ABCO Fire Protection, Inc., totaling $5,324.09 
upon its claim for negligence and $6,594.08 upon its claim for breach of contract.1 

For the following reasons, we affirm. 

In January 2016, a fire broke out in a chimney used to exhaust smoke 

and heat from a wood-fired oven installed in a restaurant in the Tremont 

neighborhood of Cleveland — Lolita, owned by celebrity chef Michael Symon. 

Following the fire, Lolita permanently ceased operations. The fire was believed to 

have started from a spark or floating ember that ignited creosote in the chimney. 

The type of chimney installed in the restaurant is designed to contain any fires that 

start from within; however, in this case, the fire escaped and heavily damaged the 

second story of the structure, and the first floor suffered water and smoke damage. 

It was alleged that access panels and a spark arrestor (that would have prevented 

the spark from igniting the creosote) in the chimney ductwork were not properly 

secured or were missing and that the chimney was improperly installed in close 

proximity to combustible materials in violation of the requisite standards. Lolita 

contracted with ABCO to clean the restaurant’s chimneys once a month. The fire 

occurred two weeks after a monthly cleaning was performed. 

Charter Oak insured Lolita under a commercial policy. The insurance 

company paid $989,998.92 to the owners of Lolita based on the damages sustained 

during the fire, demonstrated by the following chart: 

 1 The co-plaintiff State Auto Property & Casualty Insurance Company, which was 

awarded $25,442.09 in damages upon its claims for negligence against ABCO, is not a 

party to this appeal. 
Thereafter, Charter Oak filed its complaint against ABCO, asserting its right to 

subrogation. “Subrogation is defined as ‘the substitution of one party for another 

whose debt the party pays, entitling the paying party to rights, remedies, or 

securities that would otherwise belong to the debtor.’” Indiana Ins. Co. v. Barnes, 

165 Ohio App.3d 262, 2005-Ohio-6474, 846 N.E.2d 73, ¶ 17 (10th Dist.), quoting 

Black’s Law Dictionary 101 (8th Ed.2004). 

In this case, Charter Oak claims it was obligated under the terms of 

its insurance contract with the restaurant owners to cover the damages caused by a 

breach of contract between the insured and a hired contractor — based on 

allegations of breaches of a warranty or failing to perform services in a workmanlike 

manner — and the “negligent” performance of those contractual services. 

At trial, Charter Oak’s adjuster generally testified that the above 

amounts were paid to the restaurant owners based on the standard claims process. 

The adjuster did not provide a valuation on the property damaged but simply 

Tenant’s Improvements and Betterments $479,276.26 

Damaged Contents $340,127.99 

Personal Property of Others $3,285.98 

Art Restoration $3,487.24 

Computer Restoration $23,745.86 

Contents storage $2,073.60 

 Subtotal $851,996.93 

Less Deductible -$2,500.00 

 Subtotal $849,496.93 

Plus Business Interruption $140,502.00 

 Total Loss Payment $989,998.92 
reiterated what was paid to the insured based on evaluations submitted by outside 

venders or computer-generated estimates produced by a program generally used in 

the insurance industry. A content appraiser provided some evidence of the fair 

market value of 30 items of personal property included in the above summarization. 

According to the appraiser, those items were valued at $56,634.99, although 

$118,523.50 was paid to Lolita. 

According to Charter Oak, ABCO breached its monthly contract to 

clean exhaust hoods, for which it charged $600 to clean three hoods, by failing to 

clean the chimney to bare metal two weeks before the fire and that ABCO was 

responsible for removing the access panels and spark arrestor that it was allegedly 

obligated to maintain, although Lolita representatives testified that ABCO’s 

responsibility did not include the fire suppression systems. 

ABCO claims that the restaurant owners were at fault in failing to 

maintain the chimney’s access panels and safety devices because the contract was 

not for safety consulting services and the installation was negligently performed 

because the chimney was installed too near combustible materials. The jury largely 

agreed with ABCO, apportioning 90 percent of the tort liability to the restaurant 

owners and the nonparty installation company under R.C. 2307.23(A)(2). The jury 

also concluded that ABCO was in breach of its contract with the restaurant owners 

by failing to perform its services in a workmanlike manner, the damages for which 

Charter Oak claimed under a right to subrogation. 
This case presents a confusing theory of liability and damages that 

cannot be ignored. The complaint included duplicative claims sounding in tort and 

contract. Charter Oak alleged that ABCO breached its express or implied warranties 

in the contract, or failed to perform the services in a workmanlike manner as 

obligated under the contractual relationship. The factual allegations supporting 

those breach of contract claims are nearly identical to the ones advanced in support 

of the negligence claim. 

Generally in Ohio, a “breach of contract does not create a tort claim.” 

Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151, 684 

N.E.2d 1261 (9th Dist.1996), citing Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 

(6th Cir.1981); Dayton Children’s Hosp. v. Garrett Day, L.L.C., 2019-Ohio-4875, 

149 N.E.3d 1004, ¶ 111 (2d Dist.), citing Kott v. Gleneagles Professional Builders & 

Remodelers, Inc., 197 Ohio App.3d 699, 2012-Ohio-287, 968 N.E.2d 593, ¶ 15 (6th 

Dist.), and Med. Billing, Inc. v. Med. Mgt. Sciences, Inc., 212 F.3d 332, 338 (6th 

Cir.2000). A tort claim can only exist independent of the contract if the plaintiff can 

establish the existence of a duty created outside that which was created by the terms 

of the contract. Textron Fin. Corp. “When a duty in tort exists, a party may recover 

in tort. When a duty is premised entirely upon the terms of a contract, a party may 

recover based upon breach of contract.” Corporex Dev. & Constr. Mgt. v. Shook, 

Inc., 106 Ohio St.3d 412, 2005-Ohio-5409, 835 N.E.2d 701, ¶ 10. 

During trial a disagreement arose as to the scope of damages available 

in contract, after ABCO sought to dismiss the negligence claims based on the 
aforementioned principle of black-letter law, in the attempt to winnow the issues for 

trial. In seeking a directed verdict, ABCO claimed that the proposed instructions 

and interrogatories broadly permitted Charter Oak to recover the same measure of 

damages as between the breach of contract and negligence claims without 

presenting the claims as being in the alternative to one another. ABCO also sought 

a directed verdict, in part, claiming that Charter Oak was seeking duplicative claims 

of negligence that solely arose from obligations created through contract. During 

that discussion, Charter Oak conceded that its negligence and breach of contract 

claims were identical. Tr. 297:10-13. Charter Oak later claimed that the tort and 

breach of contract claims were independent of each other, although it was still 

conceded that the damages from the breach of contract claim were the same “if not 

wholly the same” as the damages alleged to have occurred as a result of the 

negligence claim. Tr. 1049:11-15; 1051:15-17. The trial court denied the motion for 

a directed verdict on Charter Oak’s negligence claim, expressly permitting both 

claims to be presented to the jury despite the conceded fact that the claims were 

identical in both establishment of the duty and the resulting damages. 

Compounding this confusion, the jury instructions, ultimately given 

over ABCO’s objection, essentially permitted Charter Oak to recover damages 

without differentiation as between the breach of contract and negligence claims. 

The jury instruction provided, at the request of Charter Oak, that the jury could 

award damages “that would be the natural and probable result of the breach of the 

contract or that would [be] reasonably within the contemplation of the parties as the 
probable result of the breach of the contract.” This instruction harkens back to 

Hadley v. Baxendal, 156 Eng. Rep. 145 (1854), that consequential damages for 

breach of contract are subject to the rule that a plaintiff is only “entitled to recover 

such damages as may reasonably be supposed to have been in the contemplation of 

the parties at the time they made the contract * * *.” Devereux v. Buckley & Co., 34 

Ohio St. 16, 21 (1877), quoting Hadley. At no time did Charter Oak attempt to 

provide the jury with a differentiation of the damages or liability attributable to the 

breach of contract claims and that of the negligence claim — seamlessly 

interchanging the damages as between claims. In fact, in closing, Charter Oak 

specifically asked the jury to enter a verdict solely based on what it paid to Lolita’s 

owners without any distinction between the tort and contract claims. Tr. 1257:4-14. 

In light of Charter Oak’s argument against directing a verdict on the negligence 

claim, the jury was left to sort the difference between the claims and the appropriate 

measure of damages on its own. 

With respect to the evidence of damages, Charter Oak’s evidence at 

trial was limited to the documentation of what it paid to the restaurant owners as a 

result of the insurance claim, as presented through the adjuster who collected and 

categorized the information on the damaged property. Charter Oak presented only 

two other witnesses to quantify the value of the property damaged: one who 

appraised 30 items representing approximately one-tenth of Charter Oak’s claimed 

damages and another who estimated Lolita’s lost income caused by the fire, 

although the witness provided no foundation for the $140,000 that Charter Oak 
paid on that aspect of the claim. The determination of the lost income was calculated 

by a financial expert who did not testify at trial. 

As ABCO continually argued throughout the lower court’s 

proceedings, there was no direct evidence of the value of the damaged property 

presented — the primary evidence was what Charter Oak paid to the insured based 

on the depreciation value of the personal property damaged in the fire totaling 

nearly $1 million. With respect to the business property, Charter Oak determined 

the value of the insurance claim by taking the purchase price of items damaged in 

the fire, calculating their useful lifespan based on an unstated formula, and 

deducting that depreciated value based on the age of the items — so, for example, if 

the pizza oven was purchased new for $36,000 and had a useful life of ten years, 

each year owned would decrease the value of the oven by $3,600 regardless of the 

condition of the oven at the time of the injury. If the pizza oven was heavily abused 

and worth half its original value, Charter Oak’s method of valuation would overvalue 

it. Charter Oak conceded that only $118,523.50 of the $989,988.92 sought from the 

jury had the fair market value analysis conducted. The fair market value of the 30 

items appraised was calculated as being $56,634.99. 

With respect to the portion of the damages sought based on the 

restaurant’s build out of the leased space, Charter Oak’s evidence relied on 

presenting evidence of what it would cost to rebuild the restaurant — the “tenant’s 

improvements and betterments” that represented almost half the value of Charter 

Oak’s claim. In the commercial space, the owners of Lolita had to build out the 
interior space to accommodate and operate the restaurant. The adjuster in this case 

testified at trial that the value of the tenant’s improvements and betterments was 

based on the estimated cost to replace the interior build out — such as the interior 

flooring, wall structures, drywall, and paint. Tr. 869:6-14. The owners of Lolita did 

not rebuild the restaurant. 

The jury returned general verdicts in favor of Charter Oak, finding 

that ABCO breached its contract with the restaurant owners causing $6,594.08 in 

damages; apportioning 10 percent of the liability against ABCO; and awarding 

53,240.99 in damages caused by the joint negligence of ABCO and nonparties Lolita 

and the installer of the chimney ductwork. Charter Oak’s damages on the negligence 

claim were reduced under R.C. 2307.22(A)(2). 

In this appeal, Charter Oak advances two assigned errors. In the first, 

it claims the jury’s verdict is against the weight of the evidence, and in the second, 

that the trial court erred by not permitting Charter Oak’s expert to supplement his 

report two weeks before trial. Neither claim has merit. 

When reviewing a claim challenging the manifest weight of the 

evidence, the court, reviewing the entire record, must weigh the evidence and all 

reasonable inferences, consider the credibility of the witnesses, and determine 

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way 

and created such a manifest miscarriage of justice that the verdict must be reversed 

and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio52, 678 N.E.2d 541; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 
N.E.2d 517, ¶ 17 (overruling the distinction between civil and criminal weight-ofthe-evidence review). As part of this review, appellate courts sit as the thirteenth 

juror with the ability to disagree with the factfinder’s resolution of the conflicting 

testimony. Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 

72 L.Ed.2d 652 (1982). This, however, does not invite courts of review to entertain 

reversals solely based on a disagreement with the outcome. “The discretionary 

power to grant a new trial should be exercised only in the exceptional case in which 

the evidence weighs heavily against” the verdict. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). 

We note, however, that it appears that Charter Oak is challenging the 

trial court’s denial of its motion for a new trial in which it was claimed that the 

amount awarded as damages was inadequate under Civ.R. 59(A)(4). Civ.R. 59(A) 

provides, in pertinent part, that a new trial may be granted for excessive or 

inadequate damages appearing to have been given under the influence of passion or 

prejudice, under Civ.R. 59(A)(4), or can be granted if the judgment is not sustained 

by the weight of the evidence, under Civ.R. 59(A)(6). Thus, the rule differentiates 

the standard for a new trial based on the weight of the evidence from that used when 

challenging the amount of damages. Black v. Hicks, 2020-Ohio-3976, 157 N.E.3d 

193, ¶ 80 (8th Dist.) (appellant failed to file a motion for a new trial claiming 

excessive damages as required to preserve the claim for appellate review). 

“‘In Ohio, it has long been held that the assessment of damages is so 

thoroughly within the province of the jury that a reviewing court is not at liberty to 
disturb the jury’s assessment absent an affirmative finding of passion and 

prejudice.’” McGugan v. Olszewski, 8th Dist. Cuyahoga No. 109099, 2020-Ohio4992, ¶ 16, quoting Kassay v. Niederst Mgt., 2018-Ohio-2057, 113 N.E.3d 1038, ¶ 45 

(8th Dist.), and Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 655, 1994-

Ohio-324, 635 N.E.2d 331. In considering the excessiveness or inadequateness of 

damages awarded by the jury, “‘there must be something contained in the record 

which the complaining party can point to that wrongfully inflamed the sensibilities 

of the jury.’” Id., quoting Kassay at ¶ 46 and Pesic v. Pezo, 8th Dist. Cuyahoga No. 

90855, 2008-Ohio-5738, ¶ 23. Review of a trial court’s decision with respect to a 

motion for a new trial is generally reviewed under the abuse-of-discretion standard, 

Koerper v. Szabo, 10th Dist. Franklin No. 18AP-734, 2019-Ohio-3159, ¶ 32, 

contrasting with the weight-of-the-evidence review for which the appellate court 

acts as the “thirteenth juror” unconstrained by the lack of evidence demonstrating 

that the damages awarded were done so by an enflamed or impassioned jury. See, 

e.g., Jawary v. Underwood, 8th Dist. Cuyahoga No. 108424, 2020-Ohio-5176, ¶ 9 

(relying on the weight-of-the-evidence standard in determining that inadequate 

damages were awarded as the justification for a new trial on damages without any 

evidence of the jury award being issued under the passion and prejudice analysis of 

Civ.R. 56(A)(4)). 

It might well be time for this issue to be addressed by the Ohio 

Supreme Court to resolve the appropriate standard of review over assignments of 

error in which an unsatisfied party claims that the damages awarded by the trier of 
fact were inadequate or excessive. As it stands under Ohio law, such a claim can be 

advanced under the abuse-of-discretion standard in reviewing the trial court’s 

resolution of a motion for new trial under Civ.R. 59, under the undue passion or 

prejudice analysis of Civ.R. 59(A)(4), or under the weight-of-the-evidence review, 

unencumbered with the limited review presented by the first two options. This case 

does not present the vehicle to resolve such a monumental issue because this 

distinction is not relevant to any of the arguments presented. 

Regardless of whether we consider that the damages were awarded 

under the influence of passion or prejudice under Civ.R. 59(A)(4), which Charter 

Oak does not even address under App.R. 16(A)(7), or through application of the 

weight-of-the-evidence standard, the outcome is the same. For this reason, we will 

address the arguments as presented rather than attempt to unravel the differences 

between Civ.R. 59(A)(4) and (A)(6). We simply note that if the drafters of Civ.R. 59 

had intended the weight-of-the-evidence standard to equally apply to inadequate or 

excessive damages claims, there would have been no need to provide the two 

grounds as being in the alternative. 

Charter Oak claims that the jury lost its way in awarding $5,324.09 

upon its claim for negligence and $6,594.08 for the breach of contract because it 

paid its insured $989,998.92 for the damage caused by the fire. Even in this appeal, 

Charter Oak has failed to distinguish between the contract and tort claims, asking 

for us to review both claims as one. We cannot accept that invitation from a legal 

standpoint; recovery under tort law is independent of any recovery that may be had 
under principles of contract. See Corporex Dev. & Constr. Mgt., 106 Ohio St.3d 412, 

2005-Ohio-5409, 835 N.E.2d 701, at ¶ 10. This complicates any analysis since we 

are unable to determine the theory of liability underlying the resulting damages for 

the purposes of determining whether the trier of fact lost its way. Since this 

confusion stems from Charter Oak, that cannot be the basis of finding error. 

Regardless, the damages were not demonstrated to be inadequate. 

Charter Oak stands in Lolita’s shoes under the basic principles of 

subrogation. What it paid to its client under the terms of their contract is not 

evidence of the damages recognized under either tort or contract principles. As the 

jury was instructed in this case: 

The measure of damages for improvements to real property, such as a 

building, [or personal property] depends on whether the damage is 

permanent or temporary. [If] the damage to the property is temporary 

such that the property can be restored to its original condition[,] the 

owner may recover the reasonable costs of these necessary repairs. 

* * * the measure of damages for personal property that it destroys [is] 

the reasonable value of the property to owner. * * * In arriving at an 

amount you may consider the original cost, the costs to replace such 

property, less reasonable depreciation for its condition and use, the 

uses which the plaintiff has for the property and other facts in the 

evidence. 

Tr. 1224:3-1225:12. Lolita did not reopen the restaurant, and there is no evidence 

that any of the damaged property was repaired. The testimony was limited to 

describing the need to replace the permanently damaged property based on 

evaluations conducted by contractors whom Charter Oak or the insured hired, but 

none of whom testified at trial — a point highlighted to the jury by ABCO. Further, 

there was no information as to the actual condition of the damaged property such 
that the cost to be replaced less the reasonable depreciation for its condition and use 

could be considered. 

The jury’s ultimate conclusion with respect to the total damages 

awarded on the tort claim, $53,240.99, was roughly in line with the market value of 

the 30 items appraised at $56,634.99. In other words, the jury could have 

reasonably accepted ABCO’s argument with respect to the need for Charter Oak to 

demonstrate the fair market value of the damaged property instead of relying on the 

blanket assertions of what was paid to its insured under the terms of the insurance 

contract. The difference between the values could have been a product of the jury 

leafing through the 200 pages of paperwork that Charter Oak tasked the jury with 

reviewing. Tr. 1257:4-14. With respect to the contract damages awarded by the jury, 

the record is simply devoid of any indication of how the jury reached its conclusion 

as to damages, and Charter Oak has not provided any explanation as to how the 

contract damages, based on the same allegations underlying the tort claims, could 

have been separately awarded. 

“[T]he presumption of the law is that the action of the court is legal 

until the contrary affirmatively appears, and the burden is upon one who claims the 

existence of error to affirmatively so show.” Makranczy v. Gelfand, 109 Ohio St. 

325, 331, 142 N.E. 688 (1924); App.R. 16(A)(7). In this case, Charter Oak has not 

demonstrated this to be the exceptional case warranting appellate intervention, let 

alone has it been explained how the jury’s decision to reject Charter Oak’s 

presentation of damages could be deemed the result of anything but a reasoned 
determination based on the evidence presented at trial. Weidner v. Blazic, 98 Ohio 

App.3d 321, 334, 648 N.E.2d 565 (12th Dist.1994), citing Litchfield v. Morris, 25 

Ohio App.3d 42, 495 N.E.2d 462 (10th Dist.1985). “The assessment of damages is a 

matter within the province of the jury,” and in order to demonstrate that the jury 

lost its way or awarded damages under the influence of passion or prejudice, there 

must be something more than the fact that the jury rejected the plaintiff’s claims. 

Id. Challenging “the mere size of the jury award alone is not sufficient to prove 

passion and prejudice.” Black, 2020-Ohio-3976, 157 N.E.3d 193, at ¶ 78 (8th Dist.), 

citing McNeil v. Kingsley, 178 Ohio App.3d 674, 2008-Ohio-5536, 899 N.E.2d 1054, 

¶ 18 (3d Dist.), Elwer v. Carrol’s Corp., 3d Dist. Allen No. 1-06-33, 2006-Ohio-6085, 

¶ 14, and Pearson v. Cleveland Acceptance Corp., 17 Ohio App.2d 239, 245, 246 

N.E.2d 602 (8th Dist.1969). 

From the record presented, we cannot conclude that the jury lost its 

way in rendering its verdict. Charter Oak’s claim that it was entitled to the full 

amount paid to its insured based on the jury’s finding ABCO negligent or in breach 

of its contract with Lolita cannot be accepted as a matter of law. Liability and 

damages must be separately proven. The finding of liability did not automatically 

entitle Charter Oak to all the damages asserted. The jury was still required to assess 

whether Charter Oak proved the damages by a preponderance of the evidence, 

whether we consider the judgment under either tort or contract principles. The first 

assignment of error is overruled. 
In the second assignment of error, Charter Oak challenges the trial 

court’s decision to deny leave for Charter Oak’s experts to provide supplemental 

reports two weeks before trial. Charter Oak had been storing the damaged exhaust 

hoods and other artifact evidence in its laboratory. ABCO requested access to the 

items to adequately prepare for trial. Both parties had timely produced expert 

reports under Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, 

General Division, and the trial court’s case management order, and there is no 

indication that ABCO’s request for the inspection was to solicit additional opinions 

from its experts. 

Following the onsite inspection, Charter Oak’s experts sought to 

supplement their report to include additional opinions as to liability but failed to 

seek leave of court for such a supplement under the unambiguous language of Loc.R. 

21.1. According to Charter Oak, the experts’ supplemental opinions were vital to its 

prosecution because the new theories presented an alternate theory of how the fire 

spread from its point of origin. The theory posited that the fire did not spread 

through cracks in the welds and could only have spread through the missing access 

panels, contradicting the claim that the improper installation caused a majority of 

the damage. 

Charter Oak claims that its expert report was necessary to proving 

liability, and therefore, the trial court committed prejudicial error by excluding its 

evidence. Charter Oak prevailed on liability. Any error with respect to the exclusion 

of the alternate theories debunking defenses to the liability question was mooted by 
the jury’s verdict in Charter Oak’s favor. None of the experts’ opinions in the belated 

supplemental reports addressed the damages issue that is now being appealed. 

Under these circumstances, we need not consider Charter Oak’s argument. The 

second and final assignment of error is overruled. 

We affirm. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

_______________________________ 

SEAN C. GALLAGHER, PRESIDING JUDGE 

LARRY A. JONES, SR., J., and 

EILEEN A. GALLAGHER, J., CONCUR 
Keywords: 109627 -- State Auto Property & Casualty Insurance Co., et al. v. ABCO 

Fire Protection, Inc. 

Motion for new trial; Civ.R. 59; subrogation; expert report; Loc.R. 21.1; weight of 

the evidence; breach of contract; negligence. 

The jury’s damages award was not against the weight of the evidence and in light of 

the fact that the jury found the defendant liable, there can be no error with the trial 

court’s decision to preclude the plaintiffs from supplementing their experts’ reports 

two weeks before trial to include an additional basis for liability.